Building contract for new homes
Contents
Contents 1
Published by Consumer Affairs Victoria Department of Justice & regulation 121 Exhibition Street Melbourne VIC 3000 3
About this contract 3
What does this contract include? 5
Cooling-off period notice 8
Key points 9
1. Checklists 9
2. Check the Builder is registered 9
3. Foundations Data 9
4. Be precise in requirements 10
5. Get estimates when exact pricing is not possible 10
6. Deposit 10
7. Completing the document 10
8. Permits and prescribed approvals 10
9. Domestic Building Insurance 11
10. Other insurance requirements 12
11. Builder’s warranties 12
12. Parties’ authorised representatives 12
13. Termination of contract 12
Checklist for the Building Owner 13
Is the contract complete and ready to be signed? 16
1. Definitions 18
2. Interpretation 21
3. Communication between the Building Owner and the Builder 21
4. Client Details 23
4. Builder Details 25
4. The New Building Details 28
Start & End Date 28
Finance & Lender Details 28
The Builder and Owner’s undertaking to obtain permits and prescribed approvals 29
5. Contract Price 31
5. Service & Facilities 33
6. Deposit 35
7. Progress payments 36
7. Stage Payments Schedule Part A 37
8. Domestic Building Insurance 38
9. Obligations of the Builder and the Building Owner 38
9. House Details 39
10. Contract documents 40
11. Signatures 41
12. General conditions of contract 42
12 Contract Inclusions 42
13. Commencement of Work 44
14. Finish Date 45
14. Agreed Allowances 46
15. Liquidated Damages 47
16. Purpose of Work 49
17. Builder’s warranties 50
18. Permits, prescribed approvals and third-party requirements 53
19. Loan approvals 54
20. Occupation of the Building Site 55
21. Access to the Building Site 55
22. Extension of Time 56
23. Variations 57
24. Provisional Sums 58
25. Prime Cost Items 59
26. Evidence of cost of Prime Cost Items and Provisional Sums 60
27. Effect of payments and non-payments to the Builder 60
28. Final Completion and final payment 60
29. Building Owner’s recovery for delay, loss, expense or damage 61
30. Lender payment 61
31. Completion of Work 62
32. Completion notifications – Opinion Procedure 62
33. Rectification period and maintenance 63
34. Dispute Resolution Procedure 64
35. Suspension of Work by the Builder 64
36. Consequences of insolvency 65
37. Termination after notice of default 65
38. Termination other than after notice of default 66
39. Builder’s entitlement at termination 66
40. Consequences of termination by the Builder 67
41. Consequences of termination by the Building Owner 67
42. Insurance 69
43. Copyright 70
Document List Attachment 71
44. Plans Supplied By 71
44. Specifications Used 71
44. Engineering Plans Supplied By 71
General Attachment 72
Provisional Sums Schedule 73
Prime Cost Items Schedule 74
Part C: Legislation Extracts 75
Clause 1: Definitions 75
Clause 7: Progress payments 76
Clause 12: General conditions of contract 78
Clause 18: Permits, prescribed approvals and third-party requirements 80
Clause 23: Variations 80
Clause 38: Termination other than after notice of default 83
Part D: Forms 84
Form A – Notice of commencement of Work 84
Form C – Notification of requirement for a boundary survey 88
Form D – Request for evidence of capacity to meet contract terms 90
Form E – Notification of new representative 92
Form F – Notification of whether loan has been approved 95
Form H – Variation to plans and specifications 101
Form H Variation Fee 102
Form I – Notification of Provisional Sum or Prime Cost Item Work 107
Form J – Progress payments 109
Form K – Loss, expense or damage caused to the Building Owner 112
Form L – Completion of Work and Opinion Procedure 115
Form M – Rectification requirement 123
Form P – Termination of contract by Builder 130
Form Q – Termination of contract by Building Owner 133
Special Conditions Between Owner and the Builder 136
Publisher information 137
Published by Consumer Affairs Victoria Department of Justice & regulation 121 Exhibition Street Melbourne VIC 3000
About this contract
Consumer Affairs Victoria (Department of Justice) has developed this contract to assist Builders and Building Owners entering into a contract for the construction of a new home. This contract can be used where the Builder is registered in Victoria as a domestic builder by the Building Practitioners Board. This contract should not be used if the Building Owner intends to carry out the Work as an owner builder or if the building permit identifies the Builder as the owner.
This contract satisfies the requirements of the Domestic Building Contracts Act 1995 (the Act) and other relevant legislation and provides a fair balance between the rights and obligations of the Builder and those of the Building Owner. As far as possible without losing legal intent, the contract has been drafted in plain English.
The contract includes notes designed to help both parties understand their rights and their responsibilities under the contract. These notes are advisory only and do not form part of the legal contract.
To assist parties to this contract to communicate with each other about significant issues, the contract provides model forms (see Part D). The contract does not mandate the use of these forms but their use is highly recommended.
The use of this model contract is voluntary. Builders and Building Owners are free to use a different contract, such as one prepared by the Builder, a solicitor, or purchased from an industry association – provided it satisfies the
Owners (Initials) Date Builders (Initials) Date
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provisions of the Act and other laws.
Whether this model contract or a different contract is used, both the Builder and Building Owner should read and fully understand all the terms in the contract.
When signed by all the parties, this contract will be legally binding in the same way as a contract drawn up by a solicitor.
This contract is designed for use for a new home where plans and specifications for the Work have already been drawn up and where the Builder is engaged to complete the construction of the home. It can be used for any new home, regardless of its size or cost.
If the Building Owner has any questions about this contract, its status, or how to complete it, they should:
- discuss the matter with the Builder
- seek advice, at the Building Owner’s cost, from a suitably qualified professional, such as a solicitor experienced in domestic building contracts.
Consumer information on building and renovating is available at the Consumer Affairs Victoria website or by calling 1300 557 559.
Note: Words in italics appearing throughout this contract are defined in Clause 1 of this contract (Part B). Legislation is also italicised but should not be read as a defined term.
Owners (Initials) Date Builders (Initials) Date
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Owners (Initials) Date Builders (Initials) Date ____________________ ____/____/________ ____________________ ____/____/________
What does this contract include?
| Item | Description |
| Cooling-off period notice | After signing a domestic building contract, the Building Owner enters into a ‘cooling-off’ period under Victoria’s consumer protection laws. The ‘cooling-off’ period is five Business Days. During the cooling-off period, the Building Owner can decide not to continue with the contract. If the Building Owner decides they do not wish to continue with the contract, the Building Owner must sign the cooling-off period notice in this contract and give it to the Builder in the manner detailed in the notice. Upon doing this, the contract is cancelled. |
| Part A: Required checklists before signing the contract | There are two checklists in Part A of this contract that must be read and signed before the contract is signed. One checklist is for the Building Owner to complete. By law, this checklist must be completed before the contract is signed and entered into. The second checklist is a guide to assist both the Building Owner and the Builder to complete the contract. |
| Part B: Terms of the contract and related attachments | This is the legal contract that sets out the various rights and obligations of the Building Owner and the Builder. Notes are provided to assist in understanding and completing the contract. These notes are advisory notes only and do not form part of the contract. |
| Part C: Legislation Extracts | Part C reproduces key sections of the Act to assist in understanding of the legal requirements of the contract. The terms of this contract require the Building Owner and the Builder to read and initial the copies of sections 37 and 38 (Variation to contract) and sections 40(1) and 40(2) (progress payments) of the Act, which are reproduced in the Legislation Extracts. |
| Attachments | A number of other important documents also form part of the contract, and need to be included as attachments. These include copies of the plans and specifications and estimates of the cost of particular items. These are explained in the consecutive sections Document List Attachment. and General Attachment. |
| Plans | Plans are detailed drawings that graphically describe the Work and how the Work will be undertaken. Plans will detail materials to be used including size, type, quantity, position and quality. Plans will also detail how the Work complies with the relevant legislation governing the construction of the building, such as the Planning and Environment Act 1987 and the Building Act 1993. |
| Specifications | Specifications are a written description of the required quality of the Work. A specification prescribes specific details regarding the Work, including, for example, adherence to relevant Australian construction standards. Specifications will also detail particular items a Building Owner requires in a building and the ‘schedule of finishes’ to be achieved in the building’s construction. Specifications also enable a clear understanding of the level of quality that is to be achieved in the building’s construction. |
| Prime Cost Items | Prime Cost Items are items (for example, a fixture or fitting) that either have not been selected, or whose price is not known, at the time the contract is entered into and for the cost of supply and delivery of which the Builder must make a reasonable allowance in the contract. A Schedule individually identifying each Prime Cost Item is attached to this contract. |
| Provisional Sum | A Provisional Sum is an estimate of the cost of carrying out particular work (including the cost of supplying any materials needed for the Work) under the contract for which a Builder, after making all reasonable inquiries, cannot give a definite amount at the time the contract is entered into. A Schedule individually identifying each Provisional Sum item is attached to this contract. |
Note: Words in italics are defined in Clause 1 of this contract (Part B).
Owners (Initials) Date Builders (Initials) Date
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Cooling-off period notice
Domestic Building Contracts Act 1995 Director of Consumer Affairs Victoria
Approved Notice
The following notice is hereby approved by the Director of Consumer Affairs Victoria. This version of the notice replaces the version published in the Victorian Government Gazette of 16 May 1996. The notice must be included in major domestic building contracts in substantially the same form or to the same effect as follows:
Notice pursuant to Section 31(n)
Cooling off period
Notice to Building Owner:. You may end this contract within five clear business days after receipt by you of a signed copy of the contract by filling in the notice below and giving it to the Builder in one of the following ways:
(1) Personally;
(2) Leaving it at his or her address set out in the contract with a person who appears to be at least 16 years old;
(3) Sending it by pre-paid certified mail to the address set out in this contract;
(4) Sending it by facsimile to the facsimile number (if any) set out in this contract.
Detach along dotted line
[Form begins] Notice that contract is ended
A Building Owner cannot withdraw from a contract under the Act if:
1. The Builder and the Building Owner have previously entered into a major domestic building contract that is in substantially the same terms for the carrying out of the Work in relation to the same home or land; OR
2. The Building Owner received independent legal advice from a practising solicitor concerning the contract before entering into the contract.
| To (Builder): | |
| I/We: | |
| give notice under our contract with you that the contract is ended. Please refund the deposit less $100 and any out of pocket expenses incurred by you which I have previously approved. | |
| Building Owner’s signature: | |
| Date: | |
| Owners (Initials) Date Builders (Initials) Date ____________________ ____/____/________ ____________________ ____/____/________ [Form ends] |
Key points
1. Checklists
The Checklist for the Building Owner, later in this document, is required by law and must be completed and signed by the Building Owner (and not by the Builder) before signing the contract. It ensures the Building Owner has considered important issues before signing the contract. It also helps the Building Owner to communicate with the Builder about those issues before finalising the contract.
The checklist ‘Is the contract complete and ready to be signed’, later in this document, is a guide to assist both the Building Owner and the Builder before signing the contract. It ensures the Building Owner and the Builder have considered and understood important issues before signing the contract. It also helps the Building Owner and the Builder to communicate about those issues before finalizing the contract. This aims to reduce potential disputes and misunderstandings between the Building Owner and the Builder.
2. Check the Builder is registered
The Building Owner should check with the Victorian Building Authority (visit the Victorian Building Authority website) that the Builder holds a current registration with the Building Practitioners Board as a domestic builder.
A simple check would be to view the Builder’s building practitioner’s registration card issued by the Building Practitioners Board. For the purpose of construction of a new dwelling, the Builder’s registration number will be prefixed with either:
- DB-U- e.g. DB-U 1234
- DB-M- e.g. DB-M 5678.
In addition to viewing the Builder’s registration card, a Building Owner should also check that the Builder’s registration is current. This is a simple process. Visit the Victorian Building Authority website and follow the links to ‘registered building practitioner’, then enter the Builder’s registration number. The status of the Builder’s registration will then be confirmed.
There are additional requirements when a building owner engages a builder with a registration number beginning with DB-M. The Building Owner should refer to the Victorian Building Authority website for further information.
3. Foundations Data
The law requires that the soil is tested to assess the type and cost of footings suitable for the site. The Act defines this testing as Foundations Data. This testing is important because, for example, rock hidden beneath the surface will significantly increase the cost of excavating the site. The law requires the Builder to obtain the Foundations Data for the Building Site before signing the contract. The Building Owner should confirm that the Builder has done this.
The cost of testing is not part of the Contract Price because the Builder needs this information before setting the Contract Price.
Owners (Initials) Date Builders (Initials) Date
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4. Be precise in requirements
It is best that the Building Owner:
- specifies the type of finish, colour code and exact model of appliances, fixtures or fittings in the plans and specifications attached to this contract
- ensures exact pricing for as many items as possible is included in the contract.
This will help to avoid misunderstandings or disputes.
5. Get estimates when exact pricing is not possible
Sometimes a builder is unable to give an exact price for a particular item (for example, a fixture or fitting), or an exact price for carrying out a particular part of the Work. In this case (by law), the Builder is required to provide a written estimate in the Prime Cost Item or Provisional Sum Schedules. Any estimate must include a breakdown of the actual quantities of material and unit cost to the Builder.
The Builder must also give the Building Owner or the Building Owner’s Representative a reasonable opportunity to be at the Building Site when the Work nominated in the Prime Cost Item or Provisional Sum Schedules is to be performed.
6. Deposit
The law limits the amount of the deposit the Builder can receive as follows:
- 5% of any Contract Price that is $20,000 or more
- 10% of any Contract Price that is less than $20,000.
It is an offence under the Act for a builder to seek a deposit in excess of the relevant amount above.
7. Completing the document
Where the contract provides for details to be filled in but that part of the contract is not applicable, the area that would ordinarily be filled in should be crossed out with a diagonal line rather than leaving it blank.
8. Permits and prescribed approvals
Work required to be carried out under this contract cannot commence until a building permit has been issued for the Work. It may also be necessary for a planning permit and other prescribed approvals to be issued before the building permit can be issued.
The term Approval Work in this contract refers to the work necessary to be undertaken to get the building permit and other permits and approvals.
The default in this contract is for the Builder to undertake the Approval Work. However, the contract also provides an option for the Building Owner to release the Builder from any obligation to undertake the Approval Work. In that case, the Building Owner is responsible for undertaking the Approval Work.
Owners (Initials) Date Builders (Initials) Date
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If the Builder is to complete the Approval Work, the Building Owner is authorising the Builder to make any application, appeal, referral or representation under the Building Act 1993 and any other authorisation required to complete the Approval Work on behalf of the Building Owner. This could result in the Builder choosing the building surveyor for the Work. The Building Owner needs to know who the building surveyor is. The building surveyor can be the municipal building surveyor at the council or a private building surveyor.
9. Domestic Building Insurance
What is Domestic Building Insurance?
Domestic Building Insurance is ‘last resort’ insurance and provides insurance only in the event the Builder dies, disappears or becomes insolvent. This insurance does not provide warranty protection or general cover.
Domestic Building Insurance requirements are set out in Clause 8 of this contract.
When is Domestic Building Insurance required?
Where the Contract Price for the carrying out of the Work is more than $16,000, the law requires the Builder to take out Domestic Building Insurance for an individual project. Domestic Building Insurance must be taken out before the:
- building permit for the Work can be issued
- Builder can enforce any term of this contract
- Work can commence.
The Building Owner must make sure they get a copy of the Domestic Building Insurance documents identified in Clause 8.4 prior to the Work commencing. These documents are:
a) a copy of the Domestic Building Insurance policy
b) the certificate of insurance
c) a summary of the insurance product.
The Building Owner should check that the Contract Price matches the value stated in the Domestic Building Insurance policy.
What does Domestic Building Insurance cover?
If the Builder dies, disappears or becomes insolvent, Domestic Building Insurance may provide some compensation to the Building Owner for loss or damage resulting from:
- non-completion of the Work
- defective Work
- a breach of warranty implied into the domestic building contract by section 8 of the Act
- a failure to maintain a standard or quality of Work specified in the domestic building contract
- conduct by the Builder in connection with the domestic building contract that contravenes a trade practices provision.
- Owners (Initials) Date Builders (Initials) Date
- ____________________ ____/____/________ ____________________ ____/____/________
How long does Domestic Building Insurance cover last?
For non-structural Defects, Domestic Building Insurance provides an indemnity for loss or damage occurring during the period starting on the commencement day of this contract and ending two years after the earlier of the:
- Completion of Work
- date of termination of the contract.
For all other loss or damage, Domestic Building Insurance provides an indemnity for the period starting on the commencement day of this contract and ending six years after the earlier of the:
- Completion of Work
- date of termination of the contract.
10. Other insurance requirements
General requirements for insurances to be provided by the Builder, other than Domestic Building Insurance, are set out in Clause 42 of this contract.
11. Builder’s warranties
Under the Act the Builder gives warranties relating to the Work and these are identified in Clause 17 of this contract.
If the Builder has not died, disappeared or become insolvent, and an issue arises about the standard of workmanship, either during the construction of the building, or during the 10 years after the Completion of Work, or whether the Builder has met the terms of the contract including completing the contract, the Builder and the Building Owner must resolve the dispute under the terms of the contract and at common law.
If the Builder has not died, disappeared or become insolvent, the Building Owner cannot make a claim on the Domestic Building Insurance policy in respect of a warranty claim for the Work or the performance of the Builder.
12. Parties’ authorised representatives
The Building Owner and the Builder must nominate their representative in the Contract Details in Clause 4, together with their contact details.
The Building Owner’s Representative and the Builder’s Representative must be contactable during normal business hours.
If the nominated representative for either party changes, the parties should notify each other as soon as possible in writing by the agreed service method stated in the Contract Details in Clause 4.
13. Termination of contract
The Building Act 1993 requires the Building Owner and the Builder each to notify the building surveyor for the Work within 14 days after the engagement of the Builder ends by termination of the contract.
Owners (Initials) Date Builders (Initials) Date
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Failure to perform this notification can incur a maximum penalty of 10 penalty units. The Building Owner should discuss with the building surveyor the capacity to continue the Work once the contract with the Builder is terminated and the process required for notification of appointment of a subsequent builder.
If the Building Owner does not intend to complete the Work, either by appointing another builder or completing the Work themselves, the Building Owner should discuss with the relevant building surveyor how this affects compliance with the requirements of the Building Act 1993 and any subsequent prescribed approval.
Part A: Check the following lists before signing the contract
Section 31(r) of the Domestic Building Contracts Act 1995 requires this checklist.
Checklist for the Building Owner
Before signing this legally binding contract, check this list
Note: This checklist does not form part of the contract.
[Form begins]
| Checklist item | Response (Yes or No) |
| 1. Has an insurance policy or a certificate of currency for Domestic Building Insurance been issued and provided to you? (see Clause 8) If not, the contract is conditional upon you receiving either an insurance policy or a certificate of currency for Domestic Building Insurance. | |
| 2. If this contract is conditional upon you receiving written approval for finance, have you obtained such written approval? (see Clause 19) | |
| If you answer ’no’ to any of the following questions you are not ready to sign the contract. | |
| 3. Have you had this contract long enough to read and understand it? | |
| 4. Have you been provided with evidence that the Builder named in this contract is registered in the category of DB-U or DB-M and the Builder’s registration with the Building Practitioners Board is current? (see Clause 4) | |
| 5. Is the Contract Price clearly stated? (see Clause 5) | |
| Owners (Initials) Date Builders (Initials) Date ____________________ ____/____/________ ____________________ ____/____/________ | |
6. Do you understand how the price is calculated and how it may be varied? (see Clause 5) | |
| 7. Is the amount and timing of each progress payment clearly stated? (see Clause 7) | |
| 8. Has the Builder sought Foundations Data and assessed the suitability of the site for the proposed Work? If tests are necessary, have they been carried out before signing the contract? (see Clause 12.2) | |
| 9. If a deposit is payable, is it within the legal limit? (see Clause 6) 5% if the Contract Price is $20,000 or more 10% if the Contract Price is less than $20,000. | |
| 10. Is the Work to be performed under the contract clearly described in the contract (see Clause 9.3), and supported by plans, specifications and any other relevant documents such as engineering calculations or soil reports? (see Clause 10) | |
| 11. Have your special requirements or finishes been included in the plans or specifications? | |
| 12. Does the contract clearly state the commencement date and completion date? If not, can those dates be worked out? (see Clause 4, Clause 13 and Clause 14) | |
| 13. Do you understand the procedure for an Extension of Time? (see Clause 22) | |
| 14. Are any Provisional Sums or Prime Cost Items clearly stated in the attached Schedules and do you understand them? (see Clause 24 and Clause 25 and the Provisional Sums Schedule and the Prime Cost Items Schedule) | |
| 15. Do you understand the procedure for varying the contract, including varying the plans or specifications? (see Clause 23) | |
| 16. Do you understand the circumstances in which you can end the contract? (see Clause 18.5, Clause 19.5, Clause 23.5, Clause 36.1 and Clause 38.1) |
Owners (Initials) Date Builders (Initials) Date
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Read, signed and dated by the Building Owner(s)
| Signature(s): | |
| Date: |
[Form ends]
Owners (Initials) Date Builders (Initials) Date
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Is the contract complete and ready to be signed?
This checklist prompts the Builder to fill in all the required sections in this contract. Both the Builder and the Building Owner should go through this checklist before signing the contract.
Note: This checklist does not form part of the contract.
[Form begins]
| Checklist item | Response (Yes or No) |
| 1. Have the Contract Details in Clause 4 been filled in? | |
| 2. Has the Finish Date or number of days required to finish the Work once it is commenced under Clause 13.1 been calculated and filled-in in the Contract Details in Clause 4? | |
| 3. Has the Contract Price in Clause 5.1 been filled in? | |
| 4. Are there any agreed exclusions from the Contract Price? If so, have the agreed exclusions been included in the table in Clause 5.2? | |
| 5. If it is agreed to exclude some fixtures and fittings from the Contract Price, have the exclusions been listed in Clause 5.3? | |
| 6. Has a detailed description of the Work required in Clause 9.3 been filled in? | |
| 7. Has the Builder provided the Building Owner with a copy of the policy of Domestic Building Insurance, Certificate of Insurance and summary of insurance product as required under Clause 8.4? | |
| 8. Has the deposit amount in Clause 6.1 been filled in? | |
| 9. Has the staged payment of the deposit been calculated and do both the Builder and the Building Owner understand when it is due? The staged payment of the deposit is as follows: 80% of the deposit when the contract has been signed and a copy of the Domestic Building Insurance policy provided to the Building Owner (see Clause 6.2(a)) 20% of the deposit when Work has commenced. (see Clause 6.2(b)) | |
| 10. Has the Builder listed all the documents that form part of the plans and specification documents (Clause 10.3) in the Document List Attachment? | |
| 11. Has the Builder filled in the description of the Foundations Data in Clause 12.2? | |
Owners (Initials) Date Builders (Initials) Date ____________________ ____/____/________ ____________________ ____/____/_______ | |
| 12. Have the Builder and the Building Owner completed the General Attachment? (see Clause 12.15 and Clause 20.2) | |
| 13. Has the agreed commencement of Work date (if applicable) in the Contract Details been filled-in in Clause 4? (see also Clause 13.1) | |
| 14. Has the Builder estimated and listed the number of days allowed for Inclement Weather, holidays and other delays? (see Clause 14.4) | |
| 15. Has the Builder identified in Clause 14.5 the likely cause of any delay that cannot be estimated as a period of time? | |
| 16. Has the Building Owner provided details in Clause 15.1 of the likely loss and damage they expect to incur if the Builder fails to complete the Work by the Finish Date? | |
| 17. Has the Building Owner stated in Clause 16.1 the particular purpose for which the Work is required or the result desired to be achieved? | |
| 18. Has the Building Owner read and initialled Clause 17.3 that relates to the Builder’s warranties? | |
| 19. Has the Building Owner made this contract subject to finance and, if so, has the loan amount in the Contract Details in Clause 4 been filled in? (see also Clause 19) | |
| 20. Have the Building Owner and the Builder read and initialled sections 37 and 38 of the Act in the Legislation Extracts? This relates to Variations under Clause 23. | |
| 21. Has the Builder’s reasonable margin for Variations, Provisional Sums and Prime Cost Items been specified in the Contract Details in Clause 4? | |
| 22. Have the Building Owner and the Builder read and initialled sections 40(1) and (2) of the Act in the Legislation Extracts? This relates to progress payments under Clause 7. | |
| 23. Are the Building Owner and the Builder both ready to sign and date this contract in Clause 11? |
Read, signed and dated by the Building Owner(s)
| Signature(s): | |
| Date: |
Owners (Initials) Date Builders (Initials) Date
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Read, signed and dated by the Builder
| Signature(s): | |
| Date: |
Part B: Terms of the contract
This is the commencement of the contract terms
1. Definitions
Clause function: This clause defines terms used throughout this contract.
In this contract, the following definitions apply, unless the context requires a different meaning:
Act means the Domestic Building Contracts Act 1995.
Approval Work means the work necessary to apply for and obtain the building permits and any prescribed approvals for the Work but does not include applying for and obtaining an occupancy permit.
Builder means the person, partnership or company named in the Contract Details as the Builder and includes the Builder’s employees, agents, contractors, heirs, executors, administrators and permitted assignees and transferees.
Builder’s Representative means the natural person identified by the Builder in the Contract Details as authorised to communicate on behalf of the Builder with the Building Owner.
Building Owner means the person, partnership or company named in the Contract Details as the Building Owner and includes the Building Owner’s heirs, executors, administrators and permitted assignees and transferees.
Building Owner’s Representative means the natural person identified by the Building Owner in the Contract Details as authorised to communicate on behalf of the Building Owner with the Builder.
Building Site means the place where the Work is to be carried out and is described in the Contract Details.
Business Day means a day that is not:
- Saturday or Sunday
- a public holiday in Victoria (whether a whole day or part of a day).
Completion of Work means the time when the Work is complete in accordance with Clause 31.
Owners (Initials) Date Builders (Initials) Date
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Contract Details means the contract details set out in Clause 4.
- Contract Price means the total amount payable under this contract and includes the amount:
- the Builder is to receive and retain under this contract
- the Builder is to receive under the contract for payment to any other person
- any third person is to receive (or is reasonably estimated to receive) directly from the Building Owner for:
- conveying to the Building Site or connecting or installing services such as gas, electricity, telephone, water and sewerage, or
- issuing planning and building permits.
The Contract Price does not include any amount that the Builder excludes in accordance with Clause 5.2.
Defect means:
- Work that is in breach of a warranty in Clause 17.1
- Work that is not of a standard or quality specified in this contract
- a failure to carry out and complete the Work in accordance with, and as required by, the plans and specifications and this contract.
Dispute Resolution Procedure means the dispute resolution procedure set out in Clause 34.
Domestic Building Dispute has the meaning given in section 54 of the Actreproduced in the Legislation Extracts.
Domestic Building Insurance means the insurance described in Clause 8.1.
Extension of Time means a period of postponement of the Finish Date.
Final Completion has the meaning in Clause 28.2.
Finish Date means the date stated in the Contract Details as the date when the Work will be finished. If no date is stated, Finish Date means the date calculated by adding the number of days stated in the Contract Details as being required to finish the Work to the date of commencement of Work set out in Clause 13.1.
Foundations Data has the meaning given in section 30(3) of the Actreproduced in the Legislation Extracts.
Inclement Weather means weather during which it is either not reasonable or not safe to continue the Work.
Legislation Extracts means the provisions set out in Part C headed ‘Legislation Extracts’, which form part of this contract.
Lender means a bank, building society or other financier that lends the Building Owner the Contract Price or any portion of that amount.
Loan Approval Date means the date in the Contract Details in Clause 4 that has been nominated by the Building Owner as the date by which the Building Owner expects a loan application for the purpose of the Work will be determined.
Opinion Procedure means the opinion procedure set out in Clause 32.
Penalty Interest Rate means the interest rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983.
Owners (Initials) Date Builders (Initials) Date
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Prime Cost Item has the meaning given in section 3 of the Act reproduced in the Legislation Extracts.
Provisional Sum has the meaning given in section 3 of the Act reproduced in the Legislation Extracts.
Variation means a variation according to law or Clause 23 of this contract (or both).
Work means the work required to be carried out under this contract, which is described in Clause 9.3 and described in more detail in the plans and specifications (which are attached to this contract). Work does not include Approval Work.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
2. Interpretation
Clause function: This clause provides guidance about how the contract is to be interpreted.
2.1 In this contract, except where the context makes it clear that another meaning is intended, the following rules apply.
2.2 A word (or words) in italics and starting with a capital letter is a defined term for the purposes of this contract. This means it has the meaning outlined in Clause 1 (Note: Legislation is also italicised but should not be read as a defined term).
2.3 A reference to a ‘Clause’ is a reference to one of the numbered Clauses under Part B of this contract.
2.4 A reference to an ‘Attachment’ is a reference to one of the attachments to this contract (the Document List Attachment and the General Attachment).
2.5 A reference to a person in this contract includes a partnership or a company.
2.6 Words suggesting the singular include the plural and vice versa.
2.7 Headings, clause function notes and user notes in shaded text boxes are advisory notes only and must not be used to interpret this contract.
2.8 A reference to ‘include’ or ‘including’ or ‘for example’ in a list does not mean that items not listed are not included.
2.9 In the event of a conflict that cannot be resolved between the drawings and the relevant text, the meaning of the text will take precedence.
3. Communication between the Building Owner and the Builder
Clause function: This clause states how the parties to the contract will communicate with each other.
3.1 Communication between the parties for the purposes of this contract must be made between the Builder and the Building Owner or their appointed representatives nominated in Clause 4 in the Contract Details.
3.2 If the Building Owner communicates with the Builder’s Representative in a way that complies with this contract it means the same as having communicated with the Builder. Similarly, if the Builder communicates with the Building Owner’s Representative in a way that complies with this contract it means the same as having communicated with the Building Owner.
3.3 The Building Owner must not give directions to the Builder’s employees or sub-contractors except as provided in Clause 3.1.
3.4 The Building Owner can only rely on statements or representations as to any matter concerning the Work or its progress that are made by the Builder or the Builder’s Representative. The Builder can only rely on statements or representations as to any matter concerning the Work that are made by the Building Owner or the Building Owner’s Representative.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
3.5 Wherever this contract requires the Building Owner or the Builder to make a demand or claim, serve a notice or document or communicate in connection with this contract, such demand, notice, document or other communication must be written in English and must be legible. As appropriate, such communication may be by the forms that are attached to this contract. Where a demand, claim notice, document or other communication is given in person, a written receipt should be given. Otherwise, all communications may be delivered by a method stated in the Contract Details (or to a subsequent address, if one is notified subsequently).
3.6 Receipt of service
Unless otherwise established by contrary evidence, a demand, claim, notice, document or other communication in connection with this contract is taken to be received at the following times:
a) if sent by post before 5.00pm on the day of posting:
i) the second day after posting, if posted to or from a place within the State of Victoria or an interstate capital city
ii) five Business Days after posting, if posted to or from a place within another state within Australia other than a capital city
iii) 10 Business Days after posting, if posted to or from a place outside Australia
b) if delivered by hand, at the time of delivery, if delivered to the person or left at the person’s address nominated in Clause 4 with a person not less than 16 years of age and apparently residing or employed at that place
c) in the case of a facsimile if sent before 5.00pm on a Business Day, on the day it is sent and, if sent later in the day, on the next Business Day
d) in the case of electronic mail, if sent before 5.00pm on a Business Day, on the day it is sent and, if sent later in the day, on the next Business Day.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/_______
4. Client Details
Clause function: This clause sets out relevant particulars of the contract.
[Form begins]
Building Owner
| Name(s): |
Address and address for service of documents
| Address: | |
| Postal address (for service of documents – include postcode): |
Contact details
| Business: | |
| After Hours: | |
| Mobile: | |
| Fax: | |
| Email: |
| Building Owner’s preferred method(s) of receipt of a demand, claim, notice, document or other communication in connection with this contract (there are three options – mark the option/s which apply with an X): | |
| Mail: | |
| Fax: | |
| Email: |
[Form continues next page]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Building Owner’s Representative
| Name(s): |
Address and address for service of documents
| Address: | |
| Postal address (for service of documents – include postcode): |
Contact details
| Business: | |
| After Hours: | |
| Mobile: | |
| Fax: | |
| Email: |
| Building Owner’s Representative’s preferred method(s) of receipt of a demand, claim, notice, document or other communication in connection with this contract (there are three options – mark the option/s which apply with an X): | |
| Mail: | |
| Fax: | |
| Email: |
[Form continues next page]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
4. Builder Details
| Name(s): |
Address and address for service of documents
| Address: | |
| Postal address (for service of documents – include postcode): |
| Australian Company Number (if applicable): ACN | |
| Australian Business Number (if applicable): ABN |
Contact details
| Business: | |
| After Hours: | |
| Mobile: | |
| Fax: | |
| Email: |
| Builder’s preferred method(s) of receipt of a demand, claim, notice, document or other communication in connection with this contract (there are three options – mark the option/s which apply with an X): | |
| Mail: | |
| Fax: | |
| Email: |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
| Name of registered building practitioner (as shown on the Building Practitioners Board registration card): | |
| Building Practitioners Board registration number (as shown on the Building Practitioners Board registration card): | |
| Category of Work shown on the registration (as shown on the registration (as shown on the Building Practitioners Board registration card): | |
| Insurer providing Domestic Building Insurance (DBI): | |
| DBI Policy number: | |
| Date of issue of policy: |
[Form continues next page]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Builder’s Representative
| Name(s): |
Address and address for service of documents
| Address: | |
| Postal address (for service of documents – include postcode): |
Contact details
| Business: | |
| After Hours: | |
| Mobile: | |
| Fax: | |
| Email: |
| Builder’s Representative’s preferred method(s) of receipt of a demand, claim, notice, document or other communication in connection with this contract (there are three options – mark the option/s which apply with an X): | |
| Mail: | |
| Fax: | |
| Email: |
[Form continues next page]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
4. The New Building Details
| Street address number: | |
| Unit number (if applicable): | |
| Street name: | |
| Suburb: | |
| Postcode: |
Title details/property identifier
| Volume: | |
| Folio number: | |
| Lot/plan number: | |
| Other property identifier (please specify): |
Start & End Date
| Agreed commencement date (If no date is specified here, then the commencement date will be determined under Clause 13.1): | |
| Finish Date or number of days required to finish Work once it is commenced under Clause 13.1: |
Finance & Lender Details
| This contract it subject to loan approval (see Clause 19) (Yes or No): | |
| Loan amount (if applicable): | |
| Name of Lender: | |
| Loan Approval Date: | |
Owners (Initials) Date Builders (Initials) Date ____________________ ____/____/________ ____________________ ____/____/________ |
Other
| The following Work is to be performed by the Building Owner: |
The Builder and Owner’s undertaking to obtain permits and prescribed approvals
| Clause 18 provides that the Builder will undertake the Approval Work unless otherwise stated. The Builder is exempt from undertaking the Approval Work by ticking the boxes below. The Building Owner will be responsible and so releases the Builder from the obligation under Clause 18.1 to obtain the necessary (there are three options – mark the option/s which apply with an X and provide details where applicable): | |
| Description | Responsibility |
| planning approval | |
| building permit | |
| other prescribed approval being: |
The margin must be reasonable. A rule of thumb is around 20%.
| The Builder’s margin for overheads supervision and profit under Clause 23 (Variations), Clause 24.4 (Provisional Sum item) and Clause 25.4 (Prime Cost Item) is (specify percentage margin): |
[Form ends]
Defects
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
5. Contract Price
Clause function: This clause sets out the Contract Price for the Work and any additional charges that could apply.
5.1 The Building Owner will pay the Contract Price in accordance with the terms of this contract
[Form begins]
Contract Price
| (amount in words): | $ |
[Form ends]
Warning: Changes to the Contract Price
The price of this contract may be altered as a result of:
- the actual cost of Prime Cost Items and Work for which Provisional Sums have been specified being more or less than the estimates set out in the contract (see Clause 24 and Clause 25)
- Variations, including those required by council or a registered building surveyor (see Clause 23)
- interest on overdue payments (see Clause 27.2).
Ensure that you fully understand how the clauses dealing with these matters may affect the Contract Price.
Warning to the Building Owner as to Prime Cost Items
It is always better to get a fixed price for all Work – even your fixtures and fittings (for example, type and model of stove or taps). However, some fixtures and fittings may need to be selected after the contract is signed. Alternatively, for fixtures and fittings that are considered a special order, the fixed price for the supply of the goods may not be available at the time of entering into the contract. If these items are specified as Prime Cost Items, the Builder will allow an amount in the Contract Price, which should cover the expected cost of the item.
If the actual cost of the Prime Cost Item is more than the amount allowed for, you will have to pay the extra amount. You may also have to pay the Builder’s margin on the goods as part of that extra amount. If this is intended, the margin should be specified – otherwise it cannot be claimed unless you agree in writing to such an additional amount.
If the Prime Cost Item costs less than is allowed for in the contract, the difference should be deducted from the Contract Price.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Warning to the Building Owner as to Provisional Sum Items
It is always better to get a fixed price for all Work and provide sufficient information for the Builder to accurately estimate how fittings, fixtures and materials are to be installed. This is critical to minimising the need for Provisional Sum items. However, even after making all reasonable inquiries, the Builder may not be able at the time of entering into the contract to give a definitive figure for the cost of carrying out a particular Work (including the supplying of materials needed to carry out the Work). If this Work is specified as a Provisional Sum item, the Builder will allow an amount in the Contract Price, which should cover the expected cost of the item.
If the actual Provisional Sum cost is more than the amount allowed for, you will have to pay the extra amount. You may also have to pay the Builder’s margin on the Provisional Sum item as part of that extra amount. If this is intended, the margin should be specified – otherwise it cannot be claimed unless you agree in writing to such an additional amount.
If the Provisional Sum item costs less than is allowed for in the contract, the difference should be deducted from the Contract Price.
5.2 The Builder states that the Contract Price does not include the amount a third person is to receive (or is reasonably estimated will receive) for any Work or thing stated in the table below:
Clause 5.2 note: This section is optional. If there are no exclusions from the Contract Price, cross out this section.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
5. Service & Facilities
| Work or thing not included in the Contract Price | Reasonably estimated amount ($) | Amount or % of Builder profit margin | Included in the contracted price Yes / No |
| a) Conveying, connecting or installing services: | |||
| gas | |||
| electricity | |||
| telephone | |||
| water | |||
| sewerage | |||
| other | |||
| b) Permits and approvals: | |||
| planning | |||
| building | |||
| other required permits | |||
| other prescribed approvals | |||
| Estimated total cost of excluded items |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
5.3 The Contract Price includes the cost of any fixtures or fittings shown in the plans and specifications included in this contract, except for those fixtures or fittings stated in the table below (after the note).
Clause 5.3 note: This clause is optional. If the Contract Price does not exclude the cost of any fixtures or fittings, cross out this clause. If there are items listed in this table, the Building Owner will be required to pay for these items in addition to the Contract Price. If there are items in this table, the Act requires the Building Owner to sign here.
[Form begins]
| Fixtures or fittings not included in the Contract Price | Reference to plans or specifications – page numbers | Estimated price ($) |
| Signature of Building Owner(s): |
[Form ends]
5.4 After signing this contract, the Contract Price may only be adjusted in accordance with this contract.
5.5 The Contract Price includes all taxes (including GST) associated with the Work. Any pricing, consideration and progress amounts payable under this contract will be calculated on a GST inclusive basis. This includes any Variation under Clause 23.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
5.6 The Builder warrants that the Contract Price is based upon Building Site inspections and all other investigations that would be undertaken by an experienced and competent builder. It includes the performance of all the necessary ancillary Work, inspection of the site and processes that would be undertaken by a builder exercising reasonable care and skill, whether described in the plans and specifications or not, and the provision of all equipment and materials for that purpose.
5.7 In the event that the Builder wishes to vary the plans and specifications as a result of conditions that could not reasonably have been ascertained from the Foundations Data, the Builder will apply for any necessary Variation under section 37 of the Act.
6. Deposit
Clause function: This clause sets out the deposit to be paid under the contract.
6.1 The total deposit under this contract is 5% of the Contract Price, which is equal to:
[Form begins]
| (amount in words): | $ |
[Form ends]
6.2 The deposit will be paid as follows:
- 80% of the deposit being ($ insert amount here ) will be paid on the Builder giving to the Building Owner all the documents mentioned in Clause 8.4 relating to Domestic Building Insurance
- 20% of the deposit being ($ insert amount here ) will be paid within five Business Days of the Building Owner receiving from the Builder a notice that states that the Builder has made a substantial commencement of the Work and stating the date of such commencement.
[Form ends]
Form A in Part D of the contract can be used for the purpose of giving this notice.
6.3 If the Building Owner has paid the Builder a deposit that is more than the amount payable to the Builder under this clause, the Builder must refund the excess to the Building Owner within five Business Days of receiving the excess amount.
Clause 6 notes
The Act prevents a builder from demanding or receiving, before they commence Work, a deposit that is more than 5% of the Contract Price if the Contract Price is $20,000 or more. If the Builder does not comply with this legislative provision, section 11 of the Act enables the Building Owner to void the contract at any time before it is completed.
The law also provides that the Building Owner must have received a copy of the Domestic Building Insurance policy before the deposit is payable.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
This contract splits up the deposit so that 80% of the deposit is payable once the Building Owner receives the documents relating to Domestic Building Insurance identified in Clause 8.4 and the balance is payable when the Building Owner receives a notice from the Builder advising that building Work has substantially commenced.
7. Progress payments
Clause function: This clause sets out the progress payments under the contract.
7.1 At the relevant stages defined in section 40(1) of the Act, the Builder may demand and recover or retain amounts by way of progress payments for the Work done that are not a greater percentage of the Contract Price than permitted by section 40 of the Act.
Form J in Part D of the contract can be used to make a claim for a progress payment.
7.2 The Builder and the Building Owner acknowledge they have read and initialed the terms set out in sections 40(1) and 40(2) of the Act, reproduced in the Legislation Extracts.
7.3 The Building Owner is not entitled to make deductions from a progress payment because of any claim made by the Building Owner against the Builder (whether the claim is made under this contract or otherwise).
7.4 If the Builder claims they cannot complete the Work solely for the reason in Clause 22.1(d), the Builder may demand and recover a further payment of not more than 5% of the Contract Price, less the Builder’s reasonable estimate of the cost to rectify the Defect preventing Completion of Work.
Clause 7 notes
For a description of the stages and percentages allowed, see the table in section 40 of the Act reproduced in the Legislation Extracts.
It is important that the Building Owner ensures each of the stages is complete before making a progress payment.
Under this contract, the Builder cannot demand, recover or retain more than the legislated percentage of the Contract Price for each stage of work.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
[Form begins]
7. Stage Payments Schedule Part A
Table of payments and progress payments Method A
| Type of contract | % of Contract Price | Amount $ | Payments and stages |
| Contract to build all stages | 5% | Deposit | |
| 10% | Base stage | ||
| 15% | Frame stage | ||
| 35% | Lock-up stage | ||
| 25% | Fixing stage | ||
| 10% | Final payment | ||
| 100% | Total |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
8. Domestic Building Insurance
Clause function: This clause sets out the requirements for Domestic Building Insurance.
8.1 The Builder must obtain Domestic Building Insurance that:
a) complies with Domestic Building Insurance Ministerial Order No. 98 of 23 May 2003 or any subsequent Order that replaces or amends that Ministerial Order before the required Domestic Building Insurance is obtained
b) covers the Work to be carried out under this contract.
8.2 The Builder must pay the insurance premium for the Domestic Building Insurance.
8.3 The Builder must not enforce any provision of this contract, perform any Domestic Building Work under this contract or demand or receive any money (including deposit money) payable under this contract until the Domestic Building Insurance policy has been issued.
8.4 The Builder must give to the Building Owner the following documents within seven Business Days of the policy of Domestic Building Insurance being issued:
a) a copy of the Domestic Building Insurance policy
b) the certificate of insurance
c) a summary of the insurance product.
Clause 8 note
The Building Owner should not pay the deposit until the Building Owner has received the documents relating to Domestic Building Insurance identified in Clause 8.4.
9. Obligations of the Builder and the Building Owner
Clause function: This clause sets out the obligations of the Builder and the Building Owner.
9.1 The Builder will perform the Work and any Approval Work in accordance with the terms of this contract and according to law.
9.2 The Builder will apply for and obtain an occupancy permit if required by the building permit.
| Obligations of the Builder and owner | Agree Y/N | |
| A. | ||
| B. | ||
| C. | ||
| D. | ||
| E. | ||
| F. | ||
| G. |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
9.3 The following is a description of the Work:
9. House Details
Complete detailed description of the Work
| Insert a description of what is to be built, for example, construction of a new home, carport, brick fence and landscaping. Include as much information as possible. Further detail of the Work is included in the plans and specifications, which form part of this contract. |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
10. Contract documents
Clause function: This clause identifies the documents that form part of the contract.
10.1 This contract includes all the writing that follows the words ‘This is the Commencement of the contract terms’ at the beginning of Part B, including the Attachments and the Schedules.
10.2 The plans and specifications and other documents for the Work listed in the Document List Attachment and the documents referred to in the General Attachment are part of this contract.
10.3 The Builder warrants that they have given the Building Owner a copy of all the documents that the Builder lists in the Document List Attachment.
Clause 10.3 note: The Building Owner should check that they have received all the documents listed in the Document List Attachment and keep a copy of these documents for their records.
10.4 As soon as is practicable, but no later than five Business Days after entering into this contract, the Builder must give the Building Owner a signed copy of the contract.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
11. Signatures
Clause function: This clause is where the contract is formally signed.
Warning before signing the contract
Warning: The Building Owner and the Builder should read the checklists in Part A of this contract to check they are aware of key terms and conditions and have completed all sections before signing this contract.
| Building Owner(s) | |
| Name: | |
| Signature: | |
| Name: | |
| Signature: | |
| Date: |
| Builder: | |
| Company name: | |
| Australian Company Number (if applicable): ACN | |
| Australian Business Number (if applicable): ABN |
| Authorised person | |
| Name: | |
| Signature: | |
| Authorised person: | |
| Date: |
[Form ends]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
12. General conditions of contract
Clause function: This clause outlines important general conditions of the contract.
12.1 The Builder warrants that before entering into the contract, the Builder has complied with each of the Builder’s obligations under section 30 of the Act reproduced in the Legislation Extracts relating to Foundations Data and will continue to do so.
12.2 The Builder warrants that the following Foundations Data has bFFeen obtained for the Building Site before entering into this contract:12. General conditions of contract
12 Contract Inclusions
| Contract Inclusions | Description Of Items | Agreed by both parties Yes /No |
| A. | ||
| B. | ||
| C. | ||
| D. | ||
| E. | ||
| F. | ||
| G. |
[Form ends]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
12.3 The Builder will ensure that the Building Site is on the land identified in the title details in the Contract Details. If there is any doubt as to the correct location of the boundaries of the Building Site, the Builder will take all necessary steps to determine the correct position of the boundaries.
12.4 The Builder may give the Building Owner a notice that within 10 Business Days after receiving the notice, the Building Owner must give the Builder satisfactory evidence of the:
a) Building Owner’s title to the Building Site
b) dimensions of the Building Site.
Form B in Part D of the contract can be used for the purpose of giving this notice.
12.5 If the position of the boundaries can only be determined by a licensed land surveyor, the Builder must provide a boundary survey. The Builder must notify the Building Owner of this intention before obtaining the survey, and must give a reasonable estimate of the cost. The Building Owner will be responsible for paying the reasonable cost of the survey.
Form C in Part D of the contract can be used for the purpose of giving this notice.
12.6 If the Building Owner fails to provide satisfactory evidence following a request under Clause 12.4, the Builder may suspend the Work under Clause 35, or take action to terminate this contract under Clause 37.1.
12.7 The Building Owner may not assign rights and obligations under this contract without the prior written consent of the Builder. Similarly, the Builder may not assign rights and obligations under this contract without the prior written consent of the Building Owner. Such consents required by either party must not be unreasonably withheld.
12.8 The Builder may sub-contract any part (but not the whole) of the Work without the Building Owner’s consent. If they do so, the Builder is not relieved from liability and responsibilities under this contract and the Builder must ensure that any sub-contracted Work complies with this contract.
12.9 The Building Owner and the Builder must cooperate to enable the other to carry out their obligations under this contract.
12.10 Either party may require the other to provide reasonable evidence of capacity to meet the terms of this contract. This request can be made at any time. On receiving such a request, the person must provide that evidence within 10 Business Days. Where such evidence is provided, the person who asked for the evidence must pay the reasonable amount of any costs incurred in obtaining and providing it. This amount should be added to, or deducted from, the Contract Price.
Form D in Part D of the contract can be used to make this request.
12.11 The rights, powers and remedies provided in this contract are cumulative with other law. They do not exclude the rights, powers and remedies provided by that law.
12.12 The Building Owner must notify the Builder in writing of any change in details of the Building Owner’s Representative. There is no requirement to change the Building Owner’s Representative’s details in the Contract Details.
12.13 The Builder must notify the Building Owner in writing of any change in details of the Builder’s Representative. There is no requirement to change the Builder’s Representative’s details in the Contract Details.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Form E in Part D of the contract can be used to notify the other party of a new representative.
12.14 Where more than one person signs this contract as the Building Owner, all such persons will be jointly and severally responsible for the obligations of the Building Owner pursuant to the terms of this contract.
12.15 The Building Owner will supply to the Builder each of the items listed in the General Attachment as being provided by the Building Owner. Upon the Builder giving to the Building Owner five Business Days’ notice that any such item is required by the Builder, the Building Owner will deliver the item at the Building Owner’s expense to the place directed by the Builder in the notice.
Clause 12 notes
The Building Owner must enable the Builder to perform the contract. This includes giving the Builder access to the Building Site.
The Building Owner must also provide the Builder with evidence that they own the Building Site and that they can pay the Contract Price if the Builder asks in writing, complying with the contract.
If asked in writing by the Building Owner, the Builder must show in writing that they can perform the contract. This might mean providing evidence that the Builder is solvent, currently registered and insured.
13. Commencement of Work
Clause function: This clause states how the date of commencement of the Work is determined.
a) will start the Work on the date (if any) specified in Clause 4; or
b) will start the Work within 10 Business Days of whichever is the latest of:
i) the date the Builder receives the building permit for the Work
ii) if the Lender’s approval is required before the Work may proceed, the date the Builder receives notice of that approval.
13.2 If the commencement date is to be determined under Clause 13.1(b), the Builder will do everything that it is reasonably possible for the Builder to do to ensure that the Work will start as soon as possible.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
14. Finish Date
Clause function: This clause states how the Finish Date is determined.
14.1 The Builder will perform the Work diligently and at a reasonable speed.
14.2 The Builder must complete the Work on or before the Finish Date.
14.3 If the Builder is entitled to an Extension of Time under Clause 22, the Finish Date will be adjusted by that Extension of Time.
14.4 In calculating the Finish Date, the Builder has made the following allowances:
Clause 14.4 note: The Builder is required by section 32 of the Act to set out how many days they have allowed under each of these categories. Penalties apply for not complying with this legislative requirement.
[Form ends]
14.5 If it is not possible for the Builder to adequately estimate the period of a particular likely delay in Clause 14.4(c), the Builder will identify here the likely cause of the delay:
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
15. Liquidated Damages
Clause function: This clause states the loss or damage that will be incurred by the Building Owner if the Work is not completed by the Finish Date.
15.1 The Building Owner will set out below the nature of the loss and damage and expect the Building Owner expects to incur (as much as this is known) if the Builder fails to complete the Work by the Finish Date:
If The Builder Delays The Client/Owner, the sum of $……………….. is to be paid to the Client/ Owner
If The Client / Owner Delays The Builder, the sum of $……………….. is to be paid to the Client
| Description Of Liquidated damages | Cost | |
| A. | ||
| B. | ||
| C. | ||
| D. | ||
| E. | ||
| F. | ||
| G. |
Clause 15.1 note: The Building Owner has the opportunity to set out in detail here the type of any likely loss or damage they will incur if the completion of the Work is delayed. Examples of likely loss and damage may include rental payments, storage costs and extra travel costs. This alerts the Builder to the type of loss and damage that may be incurred and what the Builder may be liable for if there is a delay. This is intended to help clarify each party’s responsibilities. The Building Owner should only indicate, where possible, the type of any loss or damage rather than specific amounts. This clause is not a liquidated damages clause, and does not stop the Building Owner from claiming loss or damage for expenses not listed here.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
16. Purpose of Work
Clause function: This clause requires the Building Owner to identify their expectations of the Work.
16.1 The Building Owner relies on the Builder’s skill and judgment in performing and completing the Work for the particular purpose for which the Work is required or the result that the Building Owner wishes to achieve. The particular purpose or result is stated below so as to show that reliance by the Building Owner:
Clause 16.1 note: The Building Owner has the opportunity to identify what they are expecting to achieve from the Work, for example, to build a home with a specific environmental outcome or to build a home that meets the needs of a person with a disability.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
17. Builder’s warranties
Clause function: This clause identifies the implied warranties the Builder must provide.
17.1 The Builder warrants that:
a) the Work will be carried out in a proper and workmanlike manner and in accordance with the plans and specifications set out in this contract
[Form begins]
b) all materials to be supplied by the Builder for use in the Work will be good and suitable for the purpose for which the materials are to be used and, unless otherwise stated here, those materials will be new.
Insert below details of any materials to be used that are not new:
[Form ends]
c) the Work and, where undertaken by the Builder, the Approval Work will be carried out in accordance with, and comply with, all laws and legal requirements including, without limiting the generality of this warranty, the Building Act 1993 and Regulations made under that Act
d) the Work will be carried out with reasonable care and skill and will be completed by the Finish Date
e) the home will be suitable for occupation upon Completion of Work
f) the Work and any material used in carrying out the Work will be reasonably fit for the purpose or result stated in Clause 16, or will be of such a nature and quality as might reasonably be expected to achieve that result.
17.2 The Builder acknowledges that these warranties do not in any way reduce or limit the obligations of the Builder in relation to quality, materials or other matters specified in this contract.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
17.3 The Builder acknowledges that it is the Building Owner’s right to be satisfied that the Work and, so far as they are applicable to it, the Approval Work complies with the warranties set out in Clause 17.1. In the course of doing so, the Building Owner may exercise rights of access to the Building Site under Clause 21.
| The Building Owner must initial below that they have read Clause 17.3: |
[Form ends]
Clause 17.3 note
The Building Owner should consider engaging a competent professional to monitor the progress of the Work. This could be an architect, building surveyor, building inspector, construction economist or building engineer or any combination of these persons.
Engaging a competent professional is one way the Building Owner can get some assurance that the Work carried out complies with this contract. This may help the parties to proactively deal with disagreements over this contract or possible Defects.
The Building Owner, a person engaged by the Building Owner or both, should inspect the Building Site at key stages because, once a stage is complete, Defects may not be readily visible or ascertainable. The law requires that the Builder gives the Building Owner or someone authorised by them access to the Building Site to view the progress of the Work.
If the Building Owner relies on the building surveyor (whether private or municipal) who issued the building permit to inspect the Work, they should remember that the building surveyor’s statutory role is limited: the building surveyor is only responsible for checking that certain minimum standards under the Building Regulations 2006 have been met. To the extent that the standard of Work specified in the plans and specifications goes beyond the minimum standards under the Regulations, it is not the building surveyor’s statutory role to ensure these contractual standards have been met.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
[Form begins]
17.4 Where the Builder made available for inspection a home or a building suitable for use as a home to encourage the Building Owner to enter into a contract for the construction of a similar home, the Builder will perform the Work:
a) using the same plans and specifications that were displayed in the home made available for inspection except for the following variation to the original plans:
b) to at least the same standard or Work quality and quality of materials used in the construction of the home made available for inspection except for the following:
[Form ends]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
18. Permits, prescribed approvals and third-party requirements
Clause function: This clause identifies the parties’ responsibilities for permits, approvals and third-party requirements.
18.1 Unless otherwise stated in the Contract Details, the Builder must perform the Approval Work.
18.2 The Builder must apply for an occupancy permit, if required by the building permit.
18.3 If the Builder performs the Approval Work, any fee or associated charge (or both) incurred as a result of that Approval Work by the Builder is included in the Contract Price unless excluded under Clause 5.2.
18.4 Any Approval Work will be performed punctually and diligently so that the necessary permits and approvals can be obtained at the earliest practicable date.
18.5 If the party responsible for applying for a building permit has not secured its issue within 60 calendar days from the date of this contract, the other party may terminate this contract by giving notice of termination. The terminating party must give that notice within 10 Business Days after the 60-day period expires. If this contract is terminated under this clause, the Building Owner is liable to pay the Builder’s reasonable costs incurred in association with the Approval Work but no more.
Form P in Part D of the contract can be used to give notice of termination.
18.6 The Builder acknowledges the obligation set out in full in section 26 of the Act to give the Building Owner copies of documents in relation to the Work. A copy of section 26 is reproduced in the Legislation Extracts.
18.7 The Building Owner will inform the Builder promptly of any requirement, notice or order affecting the Work from a statutory authority or Lender and will provide the Builder with copies of any relevant documents.
Clause 18 note
A building permit must be issued before the Work can commence. Before issuing the building permit, the building surveyor who issues the building permit and is responsible for the required inspections of the Work at the required stages, must ensure:
- the building work and the building permit will comply with the Building Act 1993 and the Building Regulations 2006
- any consent of a reporting authority required under the Building Act 1993 and the Building Regulations 2006 or under any other Act or regulations is obtained
- any relevant planning permit or other prescribed approval has been obtained
- the building permit will be consistent with that planning permit or other prescribed approval.
The default in this contract is for the Builder to undertake the Approval Work. However, the contract also provides an option for the Building Owner to release the Builder from any obligation to undertake the Approval Work. If the Building Owner releases the Builder from this obligation the Building Owner is responsible for undertaking the Approval Work themselves.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
If the default is accepted and the Builder completes the Approval Work, the Building Owner is authorising the Builder to make any application, appeal, referral or representation under the Building Act 1993 and any other authorisation required to complete the Approval Work on behalf of the Building Owner. This could result in the Builder choosing the building surveyor for the project. The Building Owner must know who the building surveyor is. The building surveyor can be the municipal building surveyor at the council or a private building surveyor.
19. Loan approvals
Clause function: This clause sets out the parties’ obligations if the Building Owner takes out a loan for the purpose of the contract.
19.1 Unless the Contract Details state otherwise, this contract is conditional upon the Lender approving, on or before the Loan Approval Date, a loan to the Building Owner for the purposes of this contract of an amount that is not less than the amount stated for that purpose in the Contract Details.
19.2 The Building Owner must apply to the Lender for approval of such a loan within five Business Days from the date of this contract and also provide all relevant information required by the Lender for the purpose of considering the application.
19.3 Within three Business Days after the Loan Approval Date, the Building Owner must give to the Builder a notice stating whether the Lender has approved or refused to approve the loan.
Form F in Part D of the contract can be used for this purpose.
19.4 Unless the Building Owner notifies the Builder within three Business Days of the Loan Approval Date that the Lender has refused to approve the loan, this contract will cease being conditional upon loan approval.
19.5 If, on or before three Business Days after the Loan Approval Date, the Building Owner gives the Builder notice that the Lender has refused to approve the loan, this contract is at an end and, subject to the following sub-clauses, neither the Builder nor the Building Owner is bound to perform it.
19.6 If this contract comes to an end under this clause, the Builder must refund to the Building Owner any deposit or other money paid by the Building Owner to the Builder less the amount of any deduction permitted under Clause 19.7. That refund must be paid within 10 Business Days of the Builder being notified that the Building Owner’s loan has not been approved.
19.7 The Builder may deduct the following costs from the refund referred to in Clause 19.6, where the costs were incurred by the Builder up to the date the contract was deemed to come to an end and where the costs were previously agreed to be paid by the Building Owner:
a) $100.00
b) fees paid by the Builder to another person for the Foundations Data
c) fees paid by the Builder in relation to Approval Work.
19.8 At the time of making the refund under Clause 19.6, the Builder must provide the Building Owner with copies of all documents evidencing the Builder’s entitlement to any deductions made under Clause 19.7.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
20. Occupation of the Building Site
Clause function: This clause sets out the parties’ obligations in occupying the Building Site.
20.1 This contract does not give the Builder a greater right to occupy the Building Site than that of a contractual licensee. This right includes the right to place materials, equipment and, if the Building Owner agrees, signage on the Building Site.
20.2 Where the Building Owner must remain in residence or in occupation of part of the property during the Work the following will apply:
a) the General Attachment will include a site plan of the property clearly showing the Building Site, the portion of the property to be occupied by the Building Owner and any common areas that both the Builder and the Building Owner may need to have access to
b) the Builder will be responsible for providing and maintaining an adequate physical barrier separating the Building Site from the remainder of the property.
21. Access to the Building Site
Clause function: This clause sets out the parties’ obligations in accessing the Building Site.
21.1 The Builder must do all Work necessary to provide access to the Building Site for vehicles and other equipment to carry out the Work. The Contract Price includes the cost of providing this access to the Building Site.
21.2 Except as provided under Clause 12.15, the Builder must bear all costs involved in the delivery of materials to the Building Site; the handling of materials; and the removal and disposal from the Building Site of the Builder’s rubbish, surplus material, and demolished or dismantled structural material.
21.3 The Builder is liable for any damage caused in carrying out the Work if that damage was caused by the Builder’s own negligence or fault. This includes damage caused by the Work to kerbs, gutters, paving, underground services, drains, structures or other property whether on the Building Site or adjacent to, or abutting, the Building Site.
21.4 The Builder will permit the Building Owner or any person authorised by the Building Owner (either together or separately) to have reasonable access to the Building Site and to view any part of the Work.
21.5 The Building Owner, or persons authorised by the Building Owner, will not interfere with the carrying out of the Work when accessing the Building Site under Clause 21.4.
21.6 The Builder is not liable for any reasonable costs or delays that result from any person failing to comply with Clause 21.5 provided the Builder notifies the Building Owner of the cost or delay within five Business Days of the failure to comply occurring.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Clause 21 note
The Act nominates a penalty of 20 penalty units if the Builder does not permit the Building Owner to have reasonable access to the Building Site.
Dangers could exist on the Building Site. The Building Owner should discuss appropriate occupational health and safety issues with the Builder before attending the Building Site.
22. Extension of Time
Clause function: This clause sets out the process for a Builder to claim for an Extension of Time.
22.1 The Builder will be entitled to an Extension of Time if, for any one or more of the following reasons, the Builder is delayed in achieving Completion of Work by the Finish Date:
a) Inclement Weather and its effect over and above the amount of days estimated by the Builder in Clause 14.4(a)
b) an industrial dispute that is not limited to the Building Site or to employees of the Builder
c) anything else that is beyond the reasonable control of the Builder and is not the result of the Builder’s fault
d) Completion of Work has been reached, except for minor Defects that do not prevent the Work being used for its purpose and which it is not practical for the Builder to rectify for the time being, or as to which the Builder has reasonable grounds for delaying the rectification
e) provided that the Builder gives notice to the Building Owner as required by Clause 22.2, an act or omission by the Building Owner or any person who is in any way acting on the Building Owner’s behalf or under the Building Owner’s instruction
f) a suspension of the Work by the Builder under Clause 35.
22.2 As soon as practical after the Builder becomes aware that it is likely for any reason there will be delay in completing the Work by the Finish Date, the Builder will give the Building Owner a notice informing them of the likely delay, its cause and (as far as possible) its likely duration. The Builder will keep the Building Owner informed about the likely delay, providing adequate information so that the Building Owner can assist the Builder in avoiding or minimising its effect.
Form G in Part D of the contract can be used for the purpose of giving this notice.
22.3 Both the Builder and Building Owner must take all reasonable steps to avoid or minimise any delay to the progress of the Work, whether or not it is likely to cause delay in achieving Completion of Work. The Building Owner is not obliged to agree to changes or deletions from the plans or specifications to avoid such delay.
22.4 If an act or omission by the Building Owner is causing, or has caused, delay in the progress of the Work, the Builder must notify the Building Owner in writing of that cause within two Business Days of it commencing. This requirement also applies if the delay is caused by a person who is acting on the Building Owner’s behalf, or under the Building Owner’s instruction.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
22.5 The extent of any Extension of Time must be fair and reasonable in the circumstances. Circumstances bearing on fairness and reasonableness of such claims include:
a) the extent to which there is a failure (if any) in meeting an obligation under Clause 22.2, Clause 22.3, and Clause 22.6 and the effect of any such failure
b) the cause arising after the Finish Date
c) the period of any allowance mentioned in Clause 14.4.
22.6 If the Builder wants to claim an Extension of Time, the Builder must give the Building Owner a claim within 15 Business Days after the delay ceases, stating:
a) the reason for the delay
b) the length of the claimed Extension of Time.
22.7 Within 10 Business Days of receiving the Builder’s claim under Clause 22.6, the Building Owner must respond by stating in writing that the Building Owner either wholly accepts the Extension of Time or disputes wholly or partly the Extension of Time to the extent stated in the response.
22.8 If the Building Owner wholly or partly disputes the Builder’s claim for an Extension of Time, the Building Owner must give the Builder a written explanation that is sufficiently detailed for the Builder to know the basis of the dispute.
22.9 If within 10 Business Days of receiving the Builder’s claim for an Extension of Time the Building Owner does not deliver a written response, the Finish Date will be adjusted as set out in the claim.
22.10 Where the Building Owner accepts the Builder’s claimed Extension of Time, either wholly or partly, the Finish Date will be adjusted by the period of the Builder’s claimed Extension of Time that the Building Owner accepts.
22.11 Any dispute as to the Builder’s claim for an Extension of Time will be dealt with under the Dispute Resolution Procedure.
23. Variations
Clause function: This clause identifies the process for varying the contract.
23.1 The Builder and the Building Owner acknowledge that the Work may be varied at the request of the Builder or Building Owner on the terms in sections 37 and 38 of the Act and in this clause.
Form H in Part D of the contract can be used to request and approve Variations.
23.2 The Builder and the Building Owner acknowledge having read and initialled the copy of sections 37 and 38 of the Act reproduced in the Legislation Extracts.
Clause 23.2 note: It is important that the Builder and Building Owner are aware of the process that must be followed if they wish to make a Variation. This process is outlined in sections 37 and 38 of the Act.
23.3 Before consenting to or requesting a Variation, the Building Owner may dispute that the Builder has stated the Builder’s reasonable cost, delay or effect. In that event, the dispute will be dealt with under the Dispute Resolution Procedure.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Clause 23.3 note: Sections 37 and 38 of the Act may require the Builder to provide the Building Owner with a notice stating the reasonable cost, delay or effect of a proposed Variation.
23.4 Unless agreed in writing between the Builder and the Building Owner, any adjustments to the Contract Price as a result of an approved Variation will be taken into account at the time of the next progress payment.
Clause 23.4 note: Payment of the Variation by the Building Owner or reduction of the Contract Price by the Builder resulting from a Variation should only occur at the next progress payment where it is demonstrated that the liability for the Variation occurred within the period of the progress payment.
23.5 The Building Owner can terminate the contract by notice to the Builder stating that the Building Owner is unable to meet the cost of the Variation because:
a) the Variation is due to a matter that could not reasonably have been expected to be needed for the Work to be completed; or
b) the Variation is due to a requirement of an approving authority or any other statutory authority, which was not known at the date of this contract.
The Building Owner can use Form Q in Part D of the contract to terminate the contract.
23.6 The Builder and Building Owner intend that any Variation in accordance with this clause will be made as though section 39 of the Act applied to it. A copy of section 39 is reproduced in the Legislation Extracts.
24. Provisional Sums
Clause function: This clause sets out the process to be followed if the contract includes Provisional Sum items.
24.1 The Builder warrants that each Provisional Sum included by the Builder in the Provisional Sums Schedule has been calculated with reasonable care and skill, taking account of all the information reasonably available at the date of this contract, including the nature and location of the Building Site.
24.2 For each Provisional Sum in the Provisional Sums Schedule, the Builder has set out:
a) a detailed description of the Work to which the Provisional Sum relates
b) a breakdown of the cost estimate for each Provisional Sum, including showing the estimated quantities of materials involved and the unit cost to the Builder
c) where the Builder proposes to charge more than the actual amount of any increase to the Provisional Sum, how that excess amount will be worked out.
24.3 The Builder must give the Building Owner reasonable notice of when Work included in the Provisional Sums Schedule will be done so that the Building Owner can verify the actual cost of the Work. The Builder’s notice to the Building Owner must state that the Provisional Sums may vary in price. If the Building Owner attends the Building Site to observe that Work, the Builder must allow the Building Owner reasonable access to do so. The Builder can proceed with that Work without delay at the time specified in the Builder’s notice even if the Building Owner does not attend the Building Site.
Form I in Part D of the contract can be used for the purpose of giving this notice.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
24.4 If the actual cost to the Builder is greater than the Provisional Sum allowed, the excess amount, together with the Builder’s margin specified in the Contract Details, will be added to the Contract Price, along with the additional GST. If the actual cost to the Builder is less than the Provisional Sum allowed, the Contract Price will be reduced by the difference between the Provisional Sum allowed, and the actual cost.
Clause 24.4 note: The Builder and the Building Owner should ensure a margin is specified in the Contract Details.
24.5 Any addition or deduction under Clause 24.4 will be taken into account in the next progress payment or as agreed between the parties in writing.
25. Prime Cost Items
Clause function: This clause sets out the process to be followed if the contract includes Prime Cost Items.
25.1 The Builder warrants that the amount or estimated amount for each Prime Cost Item listed in the Prime Cost Items Schedule is no less than the reasonable cost of supplying the items. This warranty is based on information that the Builder had, or reasonably should have had, at the time of making this contract and given the Builder’s knowledge of the nature and location of the Building Site. This warranty does not apply to items to be supplied or specified by the Building Owner.
25.2 For each Prime Cost Item in the Prime Cost Items Schedule, the Builder has set out:
a) a detailed description of the item to which the Prime Cost Item relates
b) a breakdown of the cost estimate for each Prime Cost Item, including showing the estimated quantities of materials that will be involved and the unit cost to the Builder of the item
c) where the Builder proposes to charge any amount over the actual amount of any increase to the Prime Cost Item, how that excess amount is to be determined.
25.3 The Builder must give the Building Owner reasonable notice of when Work included in the Prime Cost Items Schedule will be done so that the Building Owner can verify the actual cost of the Work. The Builder’s notice to the Building Owner must state that the Prime Cost Item may vary in price. If the Building Owner attends the Building Site to observe that Work the Builder must allow the Building Owner reasonable access to do so. The Builder can proceed with that Work without delay at the time specified in the Builder’s notice even if the Building Owner does not attend the Building Site.
Form I in Part D of the contract can be used for the purpose of giving this notice.
25.4 If the actual cost to the Builder is greater than the Prime Cost Item amount allowed, the excess amount, together with the Builder’s margin specified in the Prime Cost Item Schedule, will be added to the Contract Price, along with the additional GST. If the actual cost to the Builder is less than the Prime Cost Item amount allowed, the Contract Price will be reduced by the difference between the Prime Cost Item amount allowed, and the actual cost.
Clause 25.4 note: The Builder and the Building Owner should ensure a margin is specified in the Contract Details.
25.5 Any addition or deduction under Clause 25.4 will be taken into account in the next progress payment or as agreed between the parties in writing.
25.6 Unless otherwise specified, the Contract Price includes the installation of each Prime Cost Item listed in the Prime Cost Items Schedule, as well as its connection to services.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
26. Evidence of cost of Prime Cost Items and Provisional Sums
Clause function: This clause sets out the Builder’s requirements for providing evidence of the cost of a Prime Cost Item or a Provisional Sum.
26.1 The Builder must give the Building Owner a copy of any invoice, receipt or other document that shows the cost to the Builder of any Prime Cost Item, or that relates to any Provisional Sum. The Builder must do this as soon as practical after receiving the invoice, receipt or document.
Clause 26 note
The Builder is required by the Act to provide the Building Owner with copies of any invoice, receipt or document relating to Prime Cost Items or Provisional Sums.
27. Effect of payments and non-payments to the Builder
Clause function: This clause identifies the impact of non-payment by the Building Owner.
27.1 The Builder and the Building Owner acknowledge that if the Building Owner fails to pay punctually any amount by the date it is due under this contract to the Builder, a Domestic Building Dispute exists between the parties.
27.2 Once a Domestic Building Dispute is resolved, the Building Owner must pay the Builder interest at the Penalty Interest Rate on any overdue amount determined or agreed to be due and owing.
27.3 The Building Owner may still dispute any matter relating to the Work or Approval Work even though the Building Owner has paid the Builder for the Work or Approval Work.
28. Final Completion and final payment
Clause function: This clause states what the Builder must do before demanding final payment and when the Building Owner must make final payment.
28.1 The Builder must not demand final payment under this contract until the Builder has achieved Final Completion.
28.2 Final Completion is achieved when the Builder has:
a) achieved Completion of Work
b) given the Building Owner a copy of the occupancy permit under the Building Act 1993 if the building permit for the Work requires the issue of an occupancy permit or, in any other case, a copy of the certificate of final inspection
c) handed over to the Building Owner all guarantees, instruction manuals and related documents relating to the Work; all keys relating to the Work; and any permits, certificates or notices relating to the Work.
28.3 Unless Clause 29 or Clause 30 applies, the Building Owner must make the final payment within five Business Days after receiving from the Builder a demand that conforms with this clause.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
29. Building Owner’s recovery for delay, loss, expense or damage
Clause function: This clause states what the Building Owner must do to recover loss or damages incurred as a result of a delay in completing the Work.
29.1 If there is a delay in completing the Work beyond the Finish Date, the Building Owner is entitled to recover from the Builder reasonable loss, expense or damage caused to the Building Owner by the delay.
Clause 29.1 note: The Building Owner will have indicated in Clause 15.1 the nature (so far as known) of any loss or damage they expect to incur if the Work is not completed by the Finish Date. The Building Owner can claim all expenses realised as a result of a loss or damage, incurred under this clause. However, these expenses are not limited only to the types of loss or damage foreshadowed in Clause 15.1. Clause 15.1 is only indicative of the types of loss or damage that may be known at the time of entering into the contract.
Form K in Part D of the contract can be used to make this claim.
29.2 The Building Owner will, within 15 Business Days of the Finish Date, give to the Builder notice that:
a) the Building Owner intends to seek recovery of reasonable loss, expense or damage caused by the delay
b) details of the that loss, expense or damage, together with copies of relevant documents that support the Building Owner’s claim.
29.3 During the period of delay, the Building Owner will keep the Builder informed about material changes in the nature and extent of the loss, expense or damage the Building Owner is suffering or is likely to suffer.
29.4 To resolve the Building Owner’s claim under Clause 29.2, the following procedure applies:
a) within 10 Business Days of receiving the Building Owner’s claim, the Builder must deliver a written response, stating whether the Builder accepts the claim wholly or disputes the claim wholly or in part
b) if the Builder wholly or partly disputes the Building Owner’s claim, the Builder must explain in writing why, so that the Building Owner has enough information to know the basis of the dispute
c) any dispute about the Building Owner’s claim will be dealt with under the Dispute Resolution Procedure.
29.5 The amount of the Building Owner’s claim agreed between the parties or agreed under the Dispute Resolution Procedure will be a debt from the Builder to the Building Owner. This will be deducted from the final payment otherwise due from the Building Owner to the Builder. If the final payment is insufficient to satisfy the Building Owner’s claim, the Builder will pay the balance to the Building Owner within five Business Days of the Building Owner’s claim being agreed.
30. Lender payment
Clause function: This clause identifies the details for payment by the Lender.
30.1 If the payments on behalf of the Building Owner are to be made by the Lender, the Builder will accept the usual payment terms (including the need for inspections and certificates) required by the Lender.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
31. Completion of Work
Clause function: This clause sets out when Completion of Work is achieved.
31.1 The Work will be complete when:
a) it has been fully performed in accordance with this contract, including the plans and specifications forming part of this contract
b) the Builder has made good any damage of the kind referred to in Clause 21.3
c) the Builder has removed all the Builder’s rubbish, surplus material and demolished or dismantled structural material from the Building Site.
31.2 When the Builder is of the opinion that Completion of Work has been achieved, the Builder must give a notice to the Building Owner stating that opinion. Thereafter, the parties will follow the Opinion Procedure.
32. Completion notifications – Opinion Procedure
Clause function: This clause states the process the parties will follow when giving an opinion about Completion of Work.
32.1 The Building Owner must give a notice to the Builder within 10 Business Days of receiving the Builder’s opinion that Completion of Work has been achieved, that the Building Owner:
a) accepts the opinion, or
b) does not accept the opinion, giving detailed reasons.
32.2 Unless the Building Owner accepts the Builder’s opinion in the form and time required above:
a) the Building Owner and the Builder must meet to resolve the differences between them as to Completion of Work and undertake genuine and good faith negotiations based on their contractual rights and obligations within 20 Business Days of the Building Owner’s receipt of the Builder’s opinion
b) the Builder will record the details of any agreement with the Building Owner about what is necessary to achieve Completion of Work, including timing of actions to be taken by either of them
c) If the parties cannot agree or fail to meet, the dispute will be dealt with under the Dispute Resolution Procedure
32.3 If the parties agree under Clause 32.2:
a) the Builder must give a further notice to the Building Owner when it is of the opinion that Completion of Work has been achieved, stating that opinion and giving details of actions since the first notice. The Building Owner must give a notice to the Builder that the Building Owner accepts the resubmitted opinion or, if not, give detailed reasons within five days of receipt
b) the parties may, if they agree, repeat the steps in Clause 32.2 and Clause 32.3(a)
c) subject to any right under this contract to suspend or terminate it, if the parties cannot agree that Completion of Work has been achieved or do not agree to repeat the Opinion Procedure, the dispute will be dealt with under the Dispute Resolution Procedure.
Form L in Part D of the contract can be used by the Builder and Building Owner in relation to completion notifications.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Clause 32 note
This clause provides for the Builder to notify the Building Owner that Completion of Work has been reached.
The Builder should be satisfied that all Work is completed before providing the Completion of Work notice.
The Building Owner should be satisfied that the Work is complete and is performed in accordance with the contract before accepting the Builder’s opinion that Completion of Work has been achieved. The Building Owner may consider engaging a competent professional to assist them to establish Completion of Work has been achieved.
33. Rectification period and maintenance
Clause function: This clause provides for a period after Final Completion during which the Builder may be obliged to rectify.
33.1 Defect liabilities period as agreed by both parties are “…………” weeks. The Builder must rectify any Defect that is apparent in the Work as at three calendar months after the date of final payment if the Building Owner gives a notice under Clause 33.2 [below].
33.2 If the Building Owner requires the Builder to rectify a Defect, the Building Owner must give the Builder a notice (called here a Defect Rectification Request) within 10 Business Days of the expiry of the three calendar month period.
33.3 If the Building Owner gives the Builder a Defect Rectification Request, the Builder must give a written response to the Building Owner stating what the Builder agrees to rectify and does not agree to rectify in the Request at the Builder’s cost, within 10 Business Days.
33.4 Unless the Builder has reasonable grounds for being unable to do so, the Builder must rectify the item or items within 20 Business Days from receiving the Defect Rectification Request.
33.5 If a dispute arises between the parties as to whether there is a Defect or as to the extent of the Defect or whether the Defect has been rectified so as to accord with the contract, the dispute will be dealt with under the Dispute Resolution Procedure.
33.6 The Building Owner must give the Builder reasonable access to the Building Site for the purpose of rectifying a Defect.
Form M in Part D of the contract can be used to give notice of Defects.
Clause 33 note
The Building Owner still has a right to make claims for Defects beyond the rectification period.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
34. Dispute Resolution Procedure
Clause function: This clause sets out the process to be followed when a matter under this contract is in dispute.
34.1 If a dispute arises, the Builder and the Building Owner will take the following steps before resorting to the procedures set out in Part 3A (Conciliation of Disputes) and Part 4 (Inspectors) of the Act:
a) If the Building Owner or Builder considers that a dispute has arisen about any matter covered by this contract, that party must promptly give the other notice of the dispute. The notice should identify both the matter and the claim being made. Matters can be those that arose during the progress of the Work, arose after Completion of Work or arose after the contract was terminated.
Form N in Part D of the contract can be used to give this notice.
b) The Builder and the Building Owner will then arrange a meeting and will negotiate in an honest and genuine attempt to resolve the dispute. The Builder’s Representative or the Building Owner’s Representative can represent their principal for that purpose only if they have been authorised in writing.
34.2 If the dispute is not resolved within 10 Business Days, the parties may lodge a complaint with Building Advice and Conciliation Victoria or ask for an inspector to be appointed under the Act.
34.3 Where a dispute exists, each of the parties must continue to perform its obligations under this contract unless the other party evinces an intention not to comply with this clause.
Clause 34 note
See the Consumer Affairs Victoria website or call 1300 55 75 59 for details of the Building Advice and Conciliation Victoria process.
35. Suspension of Work by the Builder
Clause function: This clause states the process to be followed when the Builder intends to suspend the Work.
35.1 After giving five Business Days’ notice (called here ‘Suspension notice‘) of its intention to do so, the Builder may suspend the Work if the Building Owner fails to do any of the following things in accordance with the terms of this contract:
a) provide satisfactory evidence of title to the Building Site after being required to do so under Clause 12.4
b) pay any amount due and payable to the Builder
c) provide satisfactory evidence of its capacity to pay the Contract Price, including any Variations, after being required to do so under Clause 12.10
d) provide the Builder or the Builder’s sub-contractors access to the Building Site.
35.2 The Suspension notice must specify clearly the failure or failures that caused the Builder to give it.
35.3 If the Building Owner remedies the failure or failures specified in the Suspension notice after the Builder has suspended the Work, unless the Builder has already terminated this contract, the Builder will recommence the Work within 10 Business Days after the remedy of the failure or failures.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
35.4 If the Builder suspends the Work under this clause, the Builder will be entitled to recover from the Building Owner any cost, loss expense or damage caused by the suspension.
35.5 The right to suspend under this contract is in addition to any other powers, rights or remedies the Builder may have under common law and does not restrict them in any way.
36. Consequences of insolvency
Clause function: This clause deals with what can be done if the Builder or the Building Owner has serious financial trouble.
36.1 If a party to this contract does any of the following things:
a) commits an act of bankruptcy
b) is made bankrupt
c) assigns assets for the benefit of creditors generally
d) makes a composition or other arrangement with creditors
e) goes into liquidation or receivership or otherwise loses full capacity
f) the other party may, at its option, immediately suspend or terminate this contract by giving a notice stating that it is doing so.
Form P (Builder) or Form Q (Building Owner) in Part D of the contract can be used for the purpose of terminating the contract.
36.2 The notice under this clause must specify clearly the act or acts that caused it to be given.
36.3 The right to suspend or terminate under this contract is in addition to any other powers, rights or remedies the suspending or terminating party may have under common law and does not restrict them in any way.
37. Termination after notice of default
Clause function: This clause sets out the process the parties will follow to terminate the contract if a party is in breach of this contract.
Form P (Builder) or Form Q (Building Owner) in Part D of the contract can be used for the purpose of terminating the contract.
37.1 If the Building Owner or the Builder is in substantial breach of this contract, the other party may give a notice clearly identifying the breach and stating that party’s intention to terminate this contract if the breach is not remedied within five Business Days. If the breach is not remedied within that time, the party giving the notice may terminate this contract.
37.2 To terminate this contract a further notice must be given to the party in breach clearly identifying the breach and stating the contract is terminated, effective at the time stated in the notice.
37.3 The right to terminate under this clause is in addition to any other powers, rights or remedies the terminating party may have under common law and does not restrict them in any way.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
37.4 Substantial breach by the Building Owner includes, without reasonable cause, the Building Owner:
a) failing to provide satisfactory evidence of title to the Building Site after being required to do so under Clause 12.4
b) failing to pay any amount due and payable to the Builder
c) failing to provide satisfactory evidence of the Building Owner’s capacity to pay the Contract Price, including any Variations after being required to do so under Clause 12.10
d) continually failing to provide the Builder or the Builder’s sub-contractors access to the Building Site
e) substantially or persistently obstructing the Builder in the performance of the Work
f) failing to perform or progress the Approval Work in accordance with this contract.
37.5 Substantial breach by the Builder includes, without reasonable cause, the Builder:
a) failing to perform or progress the Work or the Approval Work in accordance with this contract
b) failing to provide materials that comply with this contract
c) unreasonably failing to replace or remedy defective Work or materials
d) failing to take out or maintain any insurance required by this contract.
38. Termination other than after notice of default
Clause function: This clause states the grounds upon which a contract can be terminated.
38.1 The Building Owner and the Builder acknowledge that section 41 of the Act sets out when and how the Building Owner may end this contract if, on the day this contract was entered into, the Builder could not reasonably have foreseen that either:
a) the Contract Price would rise by 15% or more after this contract was entered into; or
b) the contract would not be completed within one and a half (1.5) times the period by which it was to have been completed.
A copy of section 41 of the Act is reproduced in the Legislation Extracts.
38.2 In addition to the circumstances set out in section 41(1) of the Act, the Building Owner may end this contract if there is the increased time or cost stated in Clause 38.1 as a result of a Variation requirement within section 37(2) (b) of the Act.
Form P (Builder) or Form Q (Building Owner) in Part D of the contract can be used for the purpose of terminating the contract.
39. Builder’s entitlement at termination
Clause function: This clause states the grounds upon which the Builder can be paid for the Work performed up to the time the contract is terminated.
39.1 If the contract is terminated the Builder is entitled to:
a) payment in accordance with this contract for any completed stages
b) the reasonably incurred cost of the Work done since the last stage was completed, exclusive of any Work done for rectification of Defects and the cost of any unfixed materials or goods on the Building Site, together with the Builder’s margin specified in the Contract Details and GST payable.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
39.2 The Builder’s entitlement under Clause 39.1 is limited to an amount that does not cause the total amount to be paid to the Builder under this contract, exclusive of any claim under Clause 40.1(b), to exceed the Contract Price.
40. Consequences of termination by the Builder
Clause function: This clause sets out the Builder’s rights if the Builder terminates the contract.
40.1 If the Builder terminates this contract, the Builder may:
a) remove from the Building Site and retain all unfixed materials, goods, plant and equipment provided by the Builder. In the event that any unfixed materials, goods, plant or equipment provided by the Builder are not collected, the Building Owner must dispose of such materials, goods, plant or equipment according to law
b) recover from the Building Owner the amount of all cost, loss and damage incurred by the Builder as a result of the termination and the act or default that gave rise to it. The Builder may set off any such amount against any money owing by the Builder to the Building Owner under this contract.
Form P (Builder) or Form Q (Building Owner) in Part D of the contract can be used for the purpose of terminating the contract.
40.2 The Builder will, within 20 Business Days of notifying the Building Owner that the contract is terminated, submit to the Building Owner:
a) any claim that the Builder asserts for Work performed by it prior to the termination of this contract and for which the Builder has not been paid. The Builder’s entitlement to claim for Work performed by it prior to the termination of this contract and for which the Builder has not been paid is identified in Clause 39
b) any claim that the Builder asserts the Builder is entitled to under Clause 40.1(b).
Notification to building surveyor of termination of contract
The Building Act 1993 requires the Building Owner and the Builder to each notify the building surveyor for the Work within 14 days after the engagement of the Builder ends by termination of the contract. Failure to perform this notification can incur a maximum penalty of 10 penalty units.
The Building Owner should discuss with the building surveyor the capacity to continue the Work once the contract is terminated with the Builder and the process required for notification of appointment of a subsequent Builder.
If the Building Owner does not intend to complete the Work, either by appointing another builder or completing the Work themselves, the Building Owner should discuss with the building surveyor how this affects compliance with the requirements of the Building Act 1993 and any subsequent prescribed approval.
41. Consequences of termination by the Building Owner
Clause function: This clause sets out the Building Owner’s rights if the Building Owner terminates the contract.
41.1 If the Building Owner terminates this contract, the Building Owner is entitled to recover from the Builder the amount of all cost, loss and damage incurred by the Building Owner as a result of the termination and the act or default that gave rise to it. The Building Owner may set off any such amount against any money owing by the Builder to the Building Owner under this contract.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Form P (Builder) or Form Q (Building Owner) in Part D of the contract can be used for the purpose of terminating the contract.
41.2 If the Building Owner terminates this contract, the Building Owner may, by itself, or by others, complete the Work and take and use all unfixed materials, goods, plant and equipment that the Building Owner has previously provided at the Building Site.
41.3 If the Building Owner terminates this contract, the Builder may:
a) remove from the Building Site and retain all unfixed materials, goods, plant and equipment provided by the Builder. In the event that any unfixed materials, goods, plant or equipment provided by the Builder are not collected, the Building Owner must dispose of such materials, goods, plant or equipment according to law
b) recover from the Building Owner the amount of all cost, loss and damage incurred by Builder as a result of the termination and the act or default that gave rise to it. The Builder may set off any such amount against any money owing by the Builder to the Building Owner under this contract.
Note re Clause 40.1(a) and Clause 41.3 (a) – Uncollected or abandoned goods: Situations can arise where the Builder does not collect the unfixed materials, goods, plant and equipment provided by the Builder and the unfixed materials, goods, plant and equipment could be considered to be abandoned. There are specific laws relating to the disposal of uncollected goods. These laws require the Building Owner to take care of the unfixed materials, goods, plant and equipment provided by the Builder until they are collected by the Builder, delivered to the Builder, or disposed of according to law. The law outlines procedures for the disposal of uncollected goods. A building owner who fails to follow these procedures may be liable for the loss of the uncollected goods. It is best if the Building Owner seeks professional advice at their own cost, before disposing of or taking possession of the uncollected goods.
41.4 The Builder must submit to the Building Owner any claim for Work performed by it prior to the termination of this contract for which the Builder has not been paid within 20 Business Days of being notified by the Building Owner that the contract is terminated. The Builder’s entitlement to claim for Work performed by it prior to the termination of this contract and for which the Builder has not been paid is identified in Clause 39.1 and Clause 39.2.
41.5 The Building Owner will give notice to the Builder stating whether the Building Owner intends to complete the Work within 20 Business Days of receiving the Builder’s claim under Clause 41.4.
41.6 If the Building Owner gives notice that the Building Owner does not intend to complete the Work, the Building Owner must calculate the total amount of cost, loss, expense or damage that the Building Owner has reasonably incurred as a result of the termination and the act or default that gave rise to it.
41.7 The Building Owner must give the Builder a notice stating that total amount within 20 Business Days. The notice must include a statement showing clearly how the total amount is made up and include copies of any relevant documents.
41.8 If the Building Owner gives notice stating that the Building Owner intends to complete the Work:
a) the Builder is not entitled to any further payment under this contract until the Building Owner completes the Work
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
b) upon completing the Work, the Building Owner must calculate the total amount of the cost of completing the Work, together with any other cost, loss, expense or damage that the Building Owner has reasonably incurred owing to the termination and the act or default that gave rise to it
c) if the total amount stated in the notice exceeds the Contract Price, the Builder must pay the difference to the Building Owner within 20 Business Days after receiving the notice
d) if the total amount stated in the notice is less than the Contract Price, the Building Owner must pay the difference to the Builder within 20 Business Days of giving the notice to the Builder
e) the Building Owner must give the Builder a notice stating the total amount. The notice must include a statement showing clearly how the total amount is made up and include copies of any relevant documents.
42. Insurance
Clause function: This clause sets out requirements for insurance other than Domestic Building Insurance.
42.1 Before commencing the Work and until Completion of Work has been reached and agreed to by the Building Owner or affirmed in any Dispute Resolution Procedure, the Builder must take out and maintain the following insurances for the benefit of the Building Owner and the Builder:
a) public liability insurance for $……………. million to cover death or personal injury to third parties or damage to property
b) property damage insurance appropriate for the Work, including work in progress, any associated temporary work and materials on the site. This insurance must cover full reinstatement and replacement costs, including the costs of removing debris, demolition, architect’s fees and other consultants’ fees: this must be at least 100% of the estimated reinstatement and replacement costs. This insurance must include cross-liability provisions by which the insurer waives all rights of subrogation or action that the insurer may have against any of the persons comprising the insured and by which each person comprising the insured is deemed to be the subject of a separate policy of insurance. This insurance must cover loss by accident, theft, fire, explosions, vandalism, civil unrest and acts of God.
Clause 42.1 note: The Builder is required by Clause 42.1 to take out public liability insurance and property damage insurance appropriate for the Work. If the Builder fails to take out this insurance, this clause enables the Building Owner to take out these insurances and deduct the cost from the Contract Price. Alternatively, the Building Owner may choose to terminate the contract under Clause 37.5.
42.2 On settlement of any claim for damage to the Work, the Builder must diligently proceed to rebuild, replace or repair the Work. In doing so, the Builder is not entitled to any payment other than that received from the insurer.
42.3 Whenever asked by the Building Owner, the Builder must show evidence that the Builder has obtained the insurances mentioned in Clause 42.1, within 10 Business Days. Such evidence must include properly completed certificates showing the insurance is current and copies of the relevant policies. If the Builder fails to provide the evidence, or if the Builder does not take out any of the required insurances, the Building Owner may arrange the insurance and deduct the cost from payments then or subsequently due to the Builder.
42.4 The Builder indemnifies the Building Owner against any liability or loss, which may result from carrying out the Work. This indemnity covers loss for death or personal injury or property damage including damage to, or loss of, goods or materials on site including the Work. However, if such liability or loss arises in whole or in part through the fault of the Building Owner or Building Owner’s agents, the extent of the Builder’s indemnity may be reduced according to law to the extent that such fault contributed to the liability or loss.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
43. Copyright
Clause function: This clause identifies the legal use of plans and specifications.
43.1 Any party supplying plans and specifications or either for the purpose of the Work warrants that they may be used without breach of any legal or equitable right and indemnifies the other party against any claim in respect of their use.
43.2 Where plans are drawn by the Builder, the Building Owner agrees that the Builder has copyright in those plans. The Building Owner has the right to have the Works completed in accordance with those plans if the Builder’s employment is terminated under this contract for any reason.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Document List Attachment
All plans and specifications for Work to be done under this contract must be listed below, as they form part of this contract.
[Form begins]
44. Plans Supplied By
Plans
| Designer | Drawing No. or Job No. | Sheet No. | Revision No. |
| E.g. Smith and Jones Architects | 092345 | 1 | C |
44. Specifications Used
Specifications
| Designer | Drawing No. or Job No. | Sheet No. | Revision No. |
| E.g. Natspec | 092345 | 1-52 | A |
44. Engineering Plans Supplied By
| Engineer | Drawing No. or Job No. | Sheet No. | Revision No. |
Form ends]
Other relevant contract documents:
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
General Attachment
[Form begins]
| Relates to Clause 12.15 and Clause 20.2 of the contract The Building Owner will supply to the Builder each of the following items: |
| Attached is a site plan showing the areas to be occupied by the Builder,the Builder Owner and common areas. |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Provisional Sums Schedule
(Relates to Clause 24)
Provisional Sums are estimates of the cost of carrying out particular Work (including the cost of supplying any materials needed for the Work) under the contract for which the Builder, after making all reasonable enquiries, cannot give a definite amount at the time the contract is entered into.
The Builder must calculate each sum included in this schedule with reasonable care and skill, taking account of all the information reasonably available at the date of this contract, including the nature and location of the Building Site.
If the actual cost to the Builder is greater than the estimate in this table, the excess amount, together with the Builder’s margin on the excess, will be added to the Contract Price. This margin is to cover overheads, supervision and profit. The Builder’s margin is set out in the Contract Details in Clause 4.
[Form begins]
| Detailed description of the Work to which the Provisional Sum relates | Qty | Builders Allowance (Including Labour) for each component or unit of Material | Builders % Margin 20% | Total Provisional Sum Allowance for Labour & Materials |
| Eg: – Landscaping Trees | 10 | $50.00 | $10.00 | $600.00 |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Prime Cost Items Schedule
(Relates to Clause 25)
Prime Cost Items are items (for example, fixtures or fittings) that either have not been selected, or for which the price is not known, at the time the contract is entered into and for the cost of supply and delivery of which the Builder must make a reasonable allowance in the contract.
The Builder must calculate each item included in this schedule with reasonable care and skill, taking account of all the information reasonably available at the date of this contract, including the nature and location of the Building Site.
If the actual cost to the Builder is greater than the estimate in this table, the excess amount, together with the Builder’s margin on the excess will be added to the Contract Price. This margin is to cover overheads, supervision and profit. The Builder’s margin is set out in the Contract Details in Clause 4.
[Form begins]
| Detailed description of the Prime Cost (e.g. fixtures and fittings) | Builders Allowance Per Item | Qty | Prime Cost Item Allowance Total | Builders Margin % 20% | Total Cost |
| Eg: Basin | $100.00 | 4 | $400.00 | $80.00 | $480.00 |
[Form ends]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Part C: Legislation Extracts
Clause 1: Definitions
Definitions extracted from sections 3, 30 and 54 of the Act
builder means a person who, or a partnership which –
(a) carries out domestic building work; or
(b) manages or arranges the carrying out of domestic building work; or
(c) intends to carry out, or to manage or arrange the carrying out of, domestic building work.
building owner means the person for whom domestic building work is being, or is about to be, carried out.
contract price means the total amount payable under a domestic building contract and includes –
(a) the amount the builder is to receive and retain under the contract; and
(b) the amount the builder is to receive under the contract for payment to any other person; and
(c) the amount any third person is to receive (or it is reasonably estimated will receive) directly from the building owner in relation to the domestic building work to be carried out under the contract –
(i) for conveying to the building site or connecting or installing services such as gas, electricity, telephone, water and sewerage; or
(ii) for the issue of planning or building permits –
but does not include any amount that the builder excludes in accordance with section 24.
domestic building dispute is a dispute or claim arising –
(a) between a building owner and –
(i) a builder; or
(ii) a building practitioner (as defined in the Building Act 1993); or
(iii) a sub-contractor; or
(iv) an architect –
in relation to a domestic building contract or the carrying out of domestic building work; or
(b) between a builder and –
(i) another builder; or
(ii) a building practitioner (as defined in the Building Act 1993); or
(iii) a sub-contractor; or
(iv) an insurer –
in relation to a domestic building contract or the carrying out of domestic building work; or
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
(c) between a building owner or a builder and –
(i) an architect; or
(ii) a building practitioner registered under the Building Act 1993 as an engineer or draftsperson –
in relation to any design work carried out by the architect or building practitioner in respect of domestic building work.
(2) For the purposes of subsection (1), a dispute or claim includes any dispute or claim in negligence, nuisance or trespass but does not include a dispute or claim related to a personal injury.
(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.
foundations data means –
(a) the information concerning the building site that a builder exercising reasonable care and skill would need to prepare –
(i) a proper footings design for the site; and
(ii) an adequate estimate of the cost of constructing those footings; and
(b) any reports, surveys, test results, plans, specifications, computations or other information required by the regulations for the purposes of section 30 of the Act.
prime cost item means an item (for example, a fixture or fitting) that either has not been selected, or whose price is not known, at the time a domestic building contract is entered into and for the cost of supply and delivery of which the builder must make a reasonable allowance in the contract.
provisional sum is an estimate of the cost of carrying out particular work (including the cost of supplying any materials needed for the work) under a domestic building contract for which a builder, after making all reasonable inquiries, cannot give a definite amount at the time the contract is entered into.
[Form begins]
| Initial here that you have read Clause 40(1) | |
| Building Owner: | |
| Builder |
[Form ends]
Clause 7: Progress payments
Section 40 – Limits on progress payments
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
(1) In this section – Progress Claims are to be paid within “……” days of being submitted, as the final payment.
base stage means –
(a) in the case of a home with a timber floor, the stage when the concrete footings for the floor are poured and the base brickwork is built to floor level;
(b) in the case of a home with a timber floor with no base brickwork, the stage when the stumps, piers or columns are completed;
(c) in the case of a home with a suspended concrete slab floor, the stage when the concrete footings are poured;
(d) in the case of a home with a concrete floor, the stage when the floor is completed;
(e) in the case of a home for which the exterior walls and roof are constructed before the floor is constructed, the stage when the concrete footings are poured.
frame stage means the stage when a home’s frame is completed and approved by a building surveyor.
lock-up stage means the stage when a home’s external wall cladding and roof covering is fixed, the flooring is laid and external doors and external windows are fixed (even if those doors or windows are only temporary).
fixing stage means the stage when all internal cladding, architraves, skirting, doors, built-in shelves, baths, basins, troughs, sinks, cabinets and cupboards of a home are fitted and fixed in position.
[Form begins]
| Initial here that you have read Clause 40(2) | |
| Building Owner: | |
| Builder |
[Form ends]
(2) A builder must not demand or recover or retain under a major domestic building contract of a type listed in column 1 of the Table more than the percentage of the contract price listed in column 2 at the completion of a stage referred to in column 3.
Penalty: 50 penalty units.
(3) In the case of a major domestic building contract that is not listed in the Table, a builder must not demand or receive any amount or instalment that is not directly related to the progress of the building work being carried out under the contract.
Penalty: 50 penalty units.
(4) Subsections (2) and (3) do not apply if the parties to a contract agree that it is not to apply and do so in the manner set out in the regulations.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
(5) If a court finds proven a charge under subsection (2) or (3) against a builder, it may order the builder to refund to the building owner some or all of the amount the building owner has paid the builder under the contract.
(6) This power is in addition to the power the court has to impose any other penalty.
(7) Despite section 7, this section does not apply to a contract between a builder and the Crown or a public statutory authority.
Table: Limits on progress payments
| Type of contract | Percentage of contract price | Stage |
| Contract to build to lock-up stage | 20% | Base stage |
| 25% | Frame stage | |
| Contract to build to fixing stage | 12% | Base stage |
| 18% | Frame stage | |
| 40% | Lock-up stage | |
| Contract to build all stages | 10% | Base stage |
| 15% | Frame stage | |
| 35% | Lock-up stage | |
| 25% | Fixing stage |
Clause 12: General conditions of contract
Section 30 – Builder must obtain information concerning foundations
(1) This section applies if proposed domestic building work under a major domestic building contract will require the construction or alteration of the footings of a building, or may adversely affect the footings of a building.
(2) Before entering into the contract, the builder must obtain foundations data in relation to the building site on which the work is to be carried out.
Penalty: 50 penalty units.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
(3) In this section foundations data means –
(a) the information concerning the building site that a builder exercising reasonable care and skill would need to prepare –
(i) a proper footings design for the site; and
(ii) an adequate estimate of the cost of constructing those footings; and
(b) any reports, surveys, test results, plans, specifications, computations or other information required by the regulations for the purposes of this section.
(4) In deciding whether he, she or it has obtained all the information required by subsection (2), a builder must have regard to –
(a) the relevant standards published by Standards Australia1; and
(b) the need for a drainage plan or engineer’s drawings and computations; and
(c) the need for information on the fall of the land on the site.
(5) It is not necessary for a builder to commission the preparation of foundations data under this section to the extent that such data already exists and it is reasonable for the builder to rely on that data.
(6) A builder must give a copy of any foundations data obtained by the builder to the building owner (unless the building owner supplied the data to the builder) on payment by the building owner of the amount owing in relation to the obtaining of that data by the builder.
Penalty: 10 penalty units.
(7) After entering into a major domestic building contract, a builder cannot seek from the building owner an amount of money not already provided for in the contract if the additional amount could reasonably have been ascertained had the builder obtained all the foundations data required by this section.
(8) Nothing in this section prevents a builder from exercising any right given by this Act to the builder to claim an amount of money not already provided for in the contract if the need for the additional amount could not reasonably have been ascertained from the foundations data required by this section.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Clause 18: Permits, prescribed approvals and third-party requirements
Section 26 – Builder must supply copies of relevant reports etc.
(1) A builder must give to a building owner a copy of any report, notice, order or other document that the builder is given in relation to the building work being carried out by the builder for the building owner by any public statutory authority, provider of services such as gas, electricity, telephone, water and sewerage or person registered under the Building Act 1993, and must do so as soon as practicable after receiving the report, notice, order or document.
Penalty: 20 penalty units.
Clause 23: Variations
Section 37 – Variation of plans or specifications – by builder
[Form begins]
| Initial here that you have read section 37 | |
| Building Owner: | |
| Builder |
[Form ends]
(1) A builder who wishes to vary the plans or specifications set out in a major domestic building contract must give the building owner a notice that –
(a) describes the variation the builder wishes to make; and
(b) states why the builder wishes to make the variation; and
(c) states what effect the variation will have on the work as a whole being carried out under the contract and whether a variation to any permit will be required; and
(d) if the variation will result in any delays, states the builder’s reasonable estimate as to how long those delays will be; and
(e) states the cost of the variation and the effect it will have on the contract price.
(2) A builder must not give effect to any variation unless –
(a) the building owner gives the builder a signed consent to the variation attached to a copy of the notice required by subsection (1); or
(b) the following circumstances apply –
(i) a building surveyor or other authorised person under the Building Act 1993 requires in a building notice or building order under that Act that the variation be made; and
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
(ii) the requirement arose as a result of circumstances beyond the builder’s control; and
(iii) the builder included a copy of the building notice or building order in the notice required by subsection (1); and
(iv) the building owner does not advise the builder in writing within five business days of receiving the notice required by subsection (1) that the building owner wishes to dispute the building notice or building order.
(3) A builder is not entitled to recover any money in respect of a variation unless –
(a) the builder –
(i) has complied with this section; and
(ii) can establish that the variation is made necessary by circumstances that could not have been reasonably foreseen by the builder at the time the contract was entered into; or
(b) the Tribunal is satisfied –
(i) that there are exceptional circumstances or that the builder would suffer a significant or exceptional hardship by the operation of paragraph (a); and
(ii) that it would not be unfair to the building owner for the builder to recover the money.
(4) If subsection (3) applies, the builder is entitled to recover the cost of carrying out the variation plus a reasonable profit.
(5) This section does not apply to contractual terms dealing with prime cost items or provisional sums.
Section 38 – Variation of plans or specifications – by building owner
[Form begins]
| Initial here that you have read section 38 | |
| Building Owner: | |
| Builder |
[Form ends]
(1) A building owner who wishes to vary the plans or specifications set out in a major domestic building contract must give the builder a notice outlining the variation the building owner wishes to make.
(2) If the builder reasonably believes the variation will not require a variation to any permit and will not cause any delay and will not add more than 2% to the original contract price stated in the contract, the builder may carry out the variation.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/_______
(3) In any other case, the builder must give the building owner either –
(a) a notice that –
(i) states what effect the variation will have on the work as a whole being carried out under the contract and whether a variation to any permit will be required; and
(ii) if the variation will result in any delays, states the builder’s reasonable estimate as to how long those delays will be; and
(iii) states the cost of the variation and the effect it will have on the contract price; or
(b) a notice that states that the builder refuses, or is unable, to carry out the variation and that states the reason for the refusal or inability.
(4) The builder must comply with subsection (3) within a reasonable time of receiving a notice under subsection (1).
(5) A builder must not give effect to any variation asked for by a building owner unless –
(a) the building owner gives the builder a signed request for the variation attached to a copy of the notice required by subsection (3)(a); or
(b) subsection (2) applies.
(6) A builder is not entitled to recover any money in respect of a variation asked for by a building owner unless –
(a) the builder has complied with this section; or
(b) the Tribunal is satisfied –
(i) that there are exceptional circumstances or that the builder would suffer a significant or exceptional hardship by the operation of paragraph (a); and
(ii) that it would not be unfair to the building owner for the builder to recover the money.
(7) If subsection (6) applies, the builder is entitled to recover the cost of carrying out the variation plus a reasonable profit.
(8) This section does not apply to contractual terms dealing with prime cost items or provisional sums.
Section 39 – Effect of a variation on the contract price
Unless the contrary intention appears, if the plans or specifications set out in a major domestic building contract are varied in accordance with section 37 or 38, any reference in this Act, the regulations or the contract to –
(a) those plans or specifications is to be read as a reference to them as varied; and
(b) the contract price is to be read as a reference to the contract price as adjusted to take account of the variation; and
(c) the completion date, or the number of days required to finish the work, is to be read as a reference to that date, or number of days, as adjusted to take account of the variation.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Clause 38: Termination other than after notice of default
Section 41 – Ending a contract if completion time or cost blows out for unforeseeable reasons
(1) A building owner may end a major domestic building contract if –
(a) either –
(i) the contract price rises by 15% or more after the contract was entered into; or
(ii) the contract has not been completed within 1ó times the period it was to have been completed by; and
(b) the reason for the increased time or cost was something that could not have been reasonably foreseen by the builder on the date the contract was made.
(2) For the purposes of subsection (1), any increased time or cost that arises as a result of a prime cost item or a provisional sum or that is caused by a variation made under section 38 is to be ignored in calculating any price rise or increase in time.
(3) To end the contract, the building owner must give the builder a signed notice stating that the building owner is ending the contract under this section and giving details of why the contract is being ended.
(4) The Director may specify that the notice is to be given in a form approved by him or her. If the Director does this, the building owner must give the notice in that form.
(5) 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.
(6) However, a builder may not recover under subsection (5) more than the builder would have been entitled to recover under the contract.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Part D: Forms
Form A – Notice of commencement of Work
For use by: Builder
Related to: Clause 6.2
When to use this form
The deposit under this contract is to be paid in two parts. The first 80% of the deposit is due at the later of:
a) the signing of the contract; or
b) five Business Days after the Building Owner receives a copy of:
i) a copy of the Domestic Building Insurance policy
ii) the certificate of insurance
iii) a summary of the insurance product.
The final 20% of the deposit is due within five Business Days of the Building Owner receiving a notice from the Builder stating that they have substantially commenced the Work and stating the date of commencement. This form can be used for this purpose.
This request should be given to the Building Owner either in person or using one of the preferred methods nominated in Clause 4 of the contract entitled ‘Contract Details’.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
[Form begins]
| To [insert name of Building Owner]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| From [insert name of Builder]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| Regarding construction at [insert address of Building Site]: |
Notice to the Building Owner
I wish to advise that the Work has substantially commenced.
| The Work commenced on [insert date]: | |
| Please pay the remaining 20% of the deposit within five Business Days of receiving this notice. The remaining 20% of the deposit is equal to: | $ |
| Date: |
| Signed by (there are two options – mark the option which applies with an X): | |
| Builder: | |
| Builder’s Representative: |
| Signature: |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Important note to the Building Owner
The Domestic Building Contracts Act 1995 states that the Builder must not demand or receive a deposit that is more than:
a) 5% of the Contract Price, if the Contract Price is $20,000 or more
b) 10% of the Contract Price, if the Contract Price is less than $20,000.
If the Builder demands a deposit greater than the relevant amount above, the Building Owner may void the Contract at any time before it is completed.
[Form ends]Form B – Request for evidence of title and site dimensions
For use by: Builder
Related to: Clause 12.4
When to use this form
Under the contract, the Builder must ensure that the Building Site is on land owned by the Building Owner and be certain of the location of the site’s boundaries.
The Builder can use this form to request evidence from the Building Owner of their title to the Building Site and the dimensions of the Building Site.
This request should be given to the Building Owner either in person or using one of the preferred methods nominated in Clause 4 of the contract entitled ‘Contract Details’.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
[Form begins]
| To [insert name of Building Owner]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| From [insert name of Builder]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| Regarding construction at [insert address of Building Site]: |
Request to the Building Owner
Please provide satisfactory evidence of:
a) your title to the Building Site
b) the dimensions of the Building Site.
| Date: |
| Signed by (there are two options – mark the option which applies with an X): | |
| Builder: | |
| Builder’s Representative: |
| Signature: |
[Form ends]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Form C – Notification of requirement for a boundary survey
For use by: Builder
Related to: Clause 12.5
When to use this form
If the boundaries of the Building Site can only be determined by a licensed land surveyor, the Builder must provide a boundary survey. Before obtaining the survey, the Builder must notify the Building Owner that they intend to obtain a survey, and the estimated cost of that survey. The Builder can use this form to provide this information to the Building Owner.
This notice should be given to the Building Owner either in person or using one of the preferred methods nominated in Clause 4 of the contract entitled ‘Contract Details’.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
[Form begins]
| To [insert name of Building Owner]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| From [insert name of Builder]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| Regarding construction at [insert address of Building Site]: |
Notice to the Building Owner
I intend to obtain a boundary survey from a licensed land surveyor.
| In accordance with the contract, you (the Building Owner) will be responsible for paying the reasonable cost of this survey, which I estimate to be [Builder to insert reasonable estimate of cost of survey]: | $ |
| Date: |
| Signed by (there are two options – mark the option which applies with an X): | |
| Builder: | |
| Builder’s Representative: |
| Signature: |
Important note to the Building Owner
In accordance with the contract, as the Building Owner you will be responsible for paying the reasonable cost of the survey.
[Form ends]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Form D – Request for evidence of capacity to meet contract terms
For use by: Builder or Building Owner
Related to: Clause 20.10
When to use this form
At any time during the term of the contract, either party may request evidence from the other party that they have the capacity to meet the terms of the contract (e.g. that the Builder is able to complete the Work, or the Building Owner is able to pay).
Either party may use this form to request evidence from the other party that they are able to meet the terms of the contract.
This request should be delivered either in person or using one of the preferred methods nominated in Clause 4 of the contract entitled ‘Contract Details’.
Important note
Where the other party provides evidence in response to this request, the party who issued this request will be responsible for paying the reasonable costs incurred in obtaining and providing this evidence. These costs should be added to, or deducted from, the Contract Price.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
[Form begins]
| To [insert name]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| From [insert name]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| Regarding construction at [insert address of Building Site]: |
Request
Please provide reasonable evidence of your capacity to meet the terms of this contract.
| Date: |
| Signed by (there are four options – mark the option which applies with an X): | |
| Builder: | |
| Builder’s Representative: | |
| Building Owner(s): | |
| Building Owner’s Representative: |
| Signature: |
Important note to the recipient of this request
You must respond to this request within 10 Business Days of receiving it. Failure to respond within this timeframe may result in suspension of Work or termination of the contract.
Any reasonable costs incurred in obtaining or providing this evidence should be added to, or deducted from, the Contract Price.
[Form ends]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Form E – Notification of new representative
For use by: Builder or Building Owner
Related to: Clause 12.12 and Clause 12.13
When to use this form
The parties to this contract may nominate a representative who is authorised to communicate with the other party. At the time the contract was entered into, the names of representatives were specified in the Contract Details in Clause 4. If a party wishes to appoint a new representative during the term of the contract, they must notify the other party of the new representative. This form can be used for this purpose.
This notice should be either given in person or using one of the preferred methods nominated in Clause 4 of the contract entitled ‘Contract Details’.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
[Form begins]
| To [insert name]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| From [insert name]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| Regarding construction at [insert address of Building Site]: |
Notice
I have appointed a new representative. The new representative’s details are:
Contact details
| Name: | |
| Address: | |
| Postal address: | |
| Postcode: | |
| Business phone: | |
| After hours: | |
| Mobile: | |
| Fax: | |
| Email: | |
| The preferred method of delivery of a demand, notice or other document to the new representative is: |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
| Date: |
| Signed by (there are four options – mark the option which applies with an X): | |
| Builder: | |
| Builder’s Representative: | |
| Building Owner(s): | |
| Building Owner’s Representative: |
| Signature: |
[Form ends]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Form F – Notification of whether loan has been approved
For use by: Building Owner
Related to: Clause 19
When to use this form
In most cases, the contract will be conditional on the Building Owner obtaining loan approval on or before the Loan Approval Date specified in Clause 4 of the contract.
Within three Business Days after the Loan Approval Date, the Building Owner must notify the Builder whether or not the loan has been approved. This form can be used for this purpose.
This notice should be given to the Builder either in person or using one of the preferred methods nominated in Clause 4 of the contract entitled ‘Contract Details’.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
[Form begins]
| To [insert name of Builder]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| From [insert name of Building Owner]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| Regarding construction at [insert address of Building Site]: |
Notice to the Builder
| I notify you that (there are two options – either provide information for the first option or mark the second option with an X): | |
| I have obtained loan approval from [insert name of Lender]: | |
| I have not obtained loan approval. |
Important note to the Building Owner
If you fail to notify the Builder within three Business Days after the Loan Approval Date, you will continue to be bound by the contract, regardless of whether your loan has been approved.
| Date: |
| Signed by (there are two options – mark the option which applies with an X): | |
| Building Owner: | |
| Building Owner’s Representative: |
| Signature: |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Important note
If, on or before three Business Days after the Loan Approval Date, the Building Owner gives the Builder notice that the Lender has refused to approve the loan, the contract is at an end. Clause 19.6, Clause 19.7 and Clause 19.8 specify the liability of each of the parties in these circumstances.
[Form ends]Form G – Notification of likely delay/claim for Extension of Time
For use by: Builder
Response by: Building Owner
Related to: Clause 22
When to use this form
If the Builder becomes aware of a likely delay in completing the Work by the Finish Date, they are required (as soon as practical) to give the Building Owner notice of the likely delay, its cause and, as far as possible, its duration. This form can be used for this purpose.
If there has been a delay, the Builder can claim an Extension of Time by stating the reason for the delay and its duration. The Builder must make this claim within 15 Business Days of the delay ceasing. This form can be used for this purpose.
If the Builder makes a claim for an Extension of Time, the Building Owner may accept or reject (wholly or in part) the claim. This form can be used for this purpose.
This notice should be delivered either in person or using one of the preferred methods nominated in Clause 4 of the contract entitled ‘Contract Details’.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
[Form begins]
Section A – Claim by Builder
| Regarding construction at [insert address of Building Site] |
| Builder’s (there are two options – mark the option which applies with an X): | |
| notification of likely delay | |
| claim for Extension of Time for Completion of Work. |
| The reason for the delay/likely delay is (there are six options – mark the option/s which apply with an X, and provide details where applicable): | |
| Inclement Weather | |
| industrial dispute | |
| rectification of minor Defects | |
| suspension of Work (advised previously) (see Clause 35 of the contract) | |
| other reason beyond the Builder’s control [specify]: | |
| an act or omission of the Building Owner [if so, specify]: |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Note: If an act or omission of the Building Owner is the cause of the delay, the Builder must notify the Building Owner within two Business Days of the delay commencing.)
| The length of the likely delay or claimed Extension of Time is (enter number of days): |
| Date: |
| Signed by (there are two options – mark the option which applies with an X): | |
| Builder: | |
| Builder’s Representative: |
| Signature: |
Important note to the Builder
The Extension of Time must be fair and reasonable in the circumstances.
[Form continues next page]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Form G continued
Section B – Building Owner’s response
(needed only if the Builder is claiming an Extension of Time).
| Response (there are three options – mark the option which applies with an X and provide the reasons for your response where applicable): | |
| I accept all of the Builder’s claim for an Extension of Time | |
| I partially accept the Builder’s claim for an Extension of Time. The Extension of Time accepted is (specify number of days and provide the reason for rejecting part of the claim): | |
| I reject all of the Builder’s claim for an Extension of Time. The reason for rejecting the claim is: |
| Date: |
| Signed by (there are two options – mark the option which applies with an X): | |
| Building Owner(s): | |
| Building Owner’s Representative: |
| Signature: |
Important note to the Building Owner
Accepting a claim for an Extension of Time will result in the Finish Date being adjusted accordingly.
If you do not respond to the Builder’s claim within 10 Business Days, you will be deemed to have accepted the claimed extension in full.[Form ends]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Form H – Variation to plans and specifications
For use by: Builder or Building Owner
Related to: Clause 23
When to use this form
During the term of the contract, either party may wish to vary the plans or specifications.
Section A should be completed by the party wishing to initiate a Variation. If the Builder initiates a Variation, they must provide a reason.
Section B should be completed by the Builder, stating the effect the Variation will have on the Work as a whole, whether a Variation to any permit will be required, the cost of the Variation and effect on the Contract Price, and whether it will result in any delays.
Section C provides for the Building Owner’s approval or rejection of the proposed Variation.
This form should not be used for Variations regarding Prime Cost Items or Provisional Sums.
This notice should be delivered either in person or using one of the preferred methods nominated in Clause 4 of the contract entitled ‘Contract Details’.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Form H Variation Fee
Section A – Initiation of Variation
| Regarding construction at [insert address of Building Site] |
| Party initiating Variation (there are two options – mark the option which applies with an X and provide details where applicable): | |
| Building Owner: | |
| Builder [insert reason for variation]: |
| Description of Variation to plans and specifications [attach additional page(s) if insufficient space]: | |
| Variation Fee To be charged by the builder in the event the client requires variations to the original contracted plans. This fee is on top of the cost of materials, Labour and the builders margin. | $_________ |
| Date: |
| Signed by (there are four options – mark the option which applies with an X): | |
| Builder: | |
| Builder’s Representative: | |
| Building Owner(s): | |
| Building Owner’s Representative: |
| Signature: |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Important note
The Builder and Building Owner should read sections 37 and 38 of the Act carefully before completing this form. These sections of the Act are reproduced in the Legislation Extracts in Part C of the contract.
[Form continues next page]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Form H continued
Section B – Effect of Variation
(to be completed by the Builder at the same time as section A or within a reasonable time of receiving section A from the Building Owner).
Complete either Part I or Part II below:
| Part I The Builder refuses, or is unable, to carry out the Variation. The reason for refusal or inability is: |
| Part II The effect the Variation will have on the Work as a whole is (include whether any variation to permits will be required): |
| The Variation will result in a delay of [insert reasonable estimate of the number of days]: | |
| The cost of the Variation will be: | $ |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
| The effect on the Contract Price will be (there are three options – mark the option which applies with an X and enter a value where applicable): | |
| no change in price | |
| a decrease in the Contract Price of: | $ |
| an increase in the Contract Price of: | $ |
| Date: |
| Signed by (there are two options – mark the option which applies with an X): | |
| Builder: | |
| Builder’s Representative: |
| Signature: |
Important note
In some circumstances, the Builder can proceed with the Variation without first obtaining the Building Owner’s consent. These circumstances are outlined in sections 37 and 38 of the Act, which are reproduced in the Legislation Extracts in Part C of the contract.
[Form continues next page]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Form H continued
Section C – Building Owner’s consent to Variation
| Tick as appropriate below: | |
| I agree to the Variation described in section A above | |
| I do not agree to the Variation described in section A above. |
| Date: |
| Signed by (there are two options – mark the option which applies with an X): | |
| Building Owner(s): | |
| Building Owner’s Representative: |
| Signature: |
Important note to the Building Owner
If you do not provide a response to the Builder within five Business Days, the Builder may still proceed with the Variation if the Variation is required in a building notice or building order and the requirement arose as a result of circumstances beyond the Builder’s control.
[Form ends]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Form I – Notification of Provisional Sum or Prime Cost Item Work
For use by: Builder
Related to: Clause 24.3 and Clause 25.3
When to use this form
If the contract includes items in the Provisional Sum Schedule or the Prime Cost Item Schedule, the Builder must give the Building Owner adequate notice of when this Work is to be undertaken. As the cost of these items may vary from the amounts included in the schedules, the Building Owner may wish to be present at the time the Work is undertaken to verify the actual cost of the Work.
This notice should be given to the Building Owner either in person or using one of the preferred methods nominated in Clause 4 of the contract entitled ‘Contract Details’.
[Form begins]
| To [insert name of Building Owner]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| From [insert name of Builder]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| Regarding construction at [insert address of Building Site]: |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Notice to the Building Owner
| I notify you that [insert detailed description of the item from the Schedule]: |
| will be undertaken on [insert date and time]: |
This Work is included in the contract as (there are two options – mark the option which applies with an X):
| Provisional Sum Work | |
| Prime Cost Item Work |
| Date: |
| Signed by (there are two options – mark the option which applies with an X): | |
| Builder: | |
| Builder’s Representative: |
| Signature: |
Important note
If the Building Owner is unable to attend at the time the Work is to be done, or does not attend, the Builder can proceed with the Work without delay, even though the Building Owner is absent.
[Form ends]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Form J – Progress payments
For use by: Builder
Response by: Building Owner
Related to: Clause 7
When to use this form
At certain defined stages, the Builder may demand and recover or retain amounts by way of progress payments for the Work done. These payments must not be a greater percentage of the Contract Price than allowed under the Act. This form can be used by the Builder to claim a progress payment.
| To [insert name of Building Owner]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| Regarding construction at [insert address of Building Site]: |
This notice should be delivered either in person or using one of the preferred methods nominated in Clause 4 of the contract entitled ‘Contract Details’.
[Form begins]
Notice of completion of stage
| The Builder advises that the Work is at the stage indicated below (there are five options – mark the option which applies with an X): Contract to build all stages | |
| Base stage 10% | |
| Frame stage 15% | |
| Lock-up stage 35% | |
| Fixing stage 25% | |
| Final stage 10% |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Claim for progress payment
| The Builder claims a progress payment of: | $ |
| which is equal to [percentage of the Contract Price] (insert relevant percentage from above): | |
| The amount due is (insert amount; if this is the first progress payment, the amount of the deposit paid should be deducted from the progress payment amount): | $ |
| This progress payment claim takes into account the following adjustments to the Contract Price, which have been made since the contract was signed/the last progress payment claim was made: (Complete points 1-3 below only if applicable) | |
| 1. An overall adjustment to the Contract Price as a result of an agreed Variation to plans and specifications: | |
| 2. Variation in the actual price of the following Provisional Sum items: | |
| 3. Variation in the actual price of the following Prime Cost Items: | |
| (increase/decrease) | $ |
| See Clause 24 and the Provisional Sum Schedule | |
| (increase/decrease) | $ |
| (increase/decrease) | $ |
| (increase/decrease) | $ |
| See Clause 25 and the Prime Cost Item Schedule | |
| (increase/decrease) | $ |
| (increase/decrease) | $ |
| (increase/decrease) | $ |
Important note to the Builder
Copies of invoices, receipts or other documentation relating to Prime Cost Items or Provisional Sums must be given to the Building Owner as soon as practicable after receiving the invoice, receipt or document.
The progress payment claimed must not exceed the relevant percentage of the Contract Price set out above.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
| Date: |
| Signed by (there are two options – mark the option which applies with an X): | |
| Builder: | |
| Builder’s Representative: |
| Signature: |
Important note to the Building Owner
Before making a progress payment, it is important you ensure that the relevant stage has been completed as claimed.
[Form ends]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Form K – Loss, expense or damage caused to the Building Owner
For use by: Building Owner
Response by: Builder
Related to: Clause 29
When to use this form
If there is a delay in completing the Work beyond the Finish Date, the Building Owner is entitled to recover from the Builder loss, expense or damage caused to the Building Owner by the delay. This form can be used to make this claim.
The Building Owner must provide the Builder with a detailed claim for loss, expense or damage within 15 Business Days after the Finish Date.
This notice should be delivered either in person or using one of the preferred methods nominated in Clause 4 of the contract entitled ‘Contract Details’.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
[Form begins]
Section A – Building Owner’s claim for loss, expense or damage
| Regarding construction at [insert address of Building Site]: |
Building Owner’s claim for loss, expense or damage caused by a delay
| The Building Owner claims the following amount of for loss, expense or damage caused by a delay in completing the Work (insert amount). | $ |
| Details of this claim are [attach additional page(s) if insufficient space]: | |
| Date: |
| Signed by (there are two options – mark the option which applies with an X): | |
| Building Owner(s): | |
| Building Owner’s Representative: |
| Signature: |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Important note to the Building Owner
Attach copies of all relevant documents that support your claim.
[Form continues next page]
Form K continued
Section B – Builder’s response
| Builder’s response to the Building Owner’s claim (there are three options – mark the option which applies with an X or provide details where applicable): | |
| The claim in section A is accepted. | |
| The claim in section A is accepted in part. Specify the part accepted (in dollars) and the reason for rejecting part of the claim: | $ |
| The claim in section A is rejected. The reason for rejecting the claim is: |
| Date: |
| Signed by (there are two options – mark the option which applies with an X): | |
| Builder: | |
| Builder’s Representative: |
| Signature: |
Important note to the Builder
The Builder should respond to the claim within 10 Business Days of receiving this notice.
Important note to the Building Owner and the Builder
Any dispute about the Building Owner’s claim will be dealt with under the Dispute Resolution Procedure.
If the Building Owner has made a claim for loss, expense or damage, the Building Owner is not obliged to make a final payment to the Builder until five Business Days after the claim is accepted or a dispute as to the claim is resolved.
Any claim owed to the Building Owner will be deducted from the final payment due to the Builder. If the final payment is insufficient to satisfy the claim, the Builder will pay the balance to the Building Owner within five Business Days of the claim being accepted or resolved.
[Form ends]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Form L – Completion of Work and Opinion Procedure
For use by: Builder
Response by: Building Owner
Related to: Clause 32
When to use this form
When the Builder is of the opinion that that Completion of Work has been achieved they must notify the Building Owner. This form can be used for this purpose.
This form also may be used for the Opinion Procedure.
This notice should be delivered either in person or using one of the preferred methods nominated in Clause 4 of the contract entitled ‘Contract Details’.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
[Form begins]
Section A – Completion of Work notice
Notice to the Building Owner
| To [insert name of Building Owner]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| Regarding construction at [insert address of Building Site]: | |
| From [insert name of Builder]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: |
I am of the opinion that Completion of Work has been achieved.
| Date: |
| Signed by (there are two options – mark the option which applies with an X): | |
| Builder: | |
| Builder’s Representative: |
| Signature: |
Important note to the Building Owner
You must respond within 10 Business Days of receiving this notice.
Clause 32.1 of the contract states that after the Builder has given the Building Owner the Builder‘s opinion that they have completed the Work, the parties will from that point follow the Opinion Procedure. The remaining sections of this form relate to the Opinion Procedure.
[Form continues next page]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Form L continued
Section B – Building Owner’s response to opinion about Completion of Work
| To [insert name of Builder]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| From [insert name of Building Owner]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| Regarding construction at [insert address of Building Site]: |
| My response to the opinion you have given to me is that (there are two options – mark the option which applies with an X or provide details where applicable): | |
| I accept the opinion that Completion of Work has been achieved and the remaining sections of this form are not needed. | |
| I do not accept the opinion [insert reasons]: |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
| I request that you meet with me at the Building Site to reach agreement about Completion of Work [insert time and date]: |
| Date: |
| Signed by the Building Owner: |
[Form continues next page]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Form L continued Section C – Builder’s record of Completion of Work meeting
| To [insert name of Building Owner]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| Regarding construction at [insert address of Building Site]: | |
| From [insert name of Builder]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: |
| Set out below is a record of the meeting held between us at the Building Site on [insert time and date]: | |
| Date: |
| Signed by the Builder: |
[Form continues next page]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Form L continued
Section D – Resubmitted Completion of Work notice
| To [insert name of Building Owner]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| Regarding construction at [insert address of Building Site]: | |
| From [insert name of Builder]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: |
| I am of the opinion that Completion of Work has been achieved. This notice is resubmitted. Since the previous notice, the following actions have occurred: |
| Date: |
| Signed by (there are two options – mark the option which applies with an X): | |
| Builder: | |
| Builder’s Representative: |
| Signature: |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Important note to the Building Owner
You must respond within 10 Business Days of receiving this notice.
[Form continues next page]Form L continued
Section E – Building Owner’s response to resubmitted opinion about Completion of Work
| To [insert name of Builder]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| From [insert name of Building Owner]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| Regarding construction at [insert address of Building Site]: |
| My response to the resubmitted opinion you have given to me is that (there are two options – mark the option which applies with an X or provide details where applicable): | |
| I accept the opinion that Completion of Work has been achieved and the remaining sections of this form are not needed. | |
| I do not accept the opinion [insert reasons]: |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
| Select one of the two options below by marking with an X or provide details where applicable | |
| I request that you meet with me at the Building Site again to reach agreement about Completion of Work and I agree to repeat the Opinion Procedure [insert time and date]: | |
| Completion of Work will now be dealt with under the Dispute Resolution Procedure. |
| Date: |
| Signed by the Building Owner: |
[Form ends]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Form M – Rectification requirement
For use by: Building Owner
Response by: Builder
Related to: Clause 33
When to use this form
If, within three calendar months after the date of final payment a Defect in the Work appears that is not a result of misuse or ordinary wear and tear, the Building Owner can request the Builder to perform this rectification. This form can be used for this purpose.
This form may be also used by the Builder to respond to the rectification request.
After any section of this form has been completed, it should be delivered either in person or using one of the preferred methods nominated in Clause 4 of the contract entitled ‘Contract Details’.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
[Form begins]
Section A – Building Owner’s rectification request
| Regarding construction at [insert address of Building Site]: |
Building Owner’s Defect Rectification Request
| I request that you rectify the following Defects, which have become apparent in the Work within three calendar months of Final Completion [attach additional page(s) if insufficient space]: |
| Date: |
| Signed by (there are two options – mark the option which applies with an X): | |
| Building Owner(s): | |
| Building Owner’s Representative: |
| Signature: |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Important note to the Building Owner
If you require the Builder to rectify the Defect, you must notify them of the Defect within 10 Business Days of the expiry of the three calendar month period following Final Completion.
[Form continues next page]
Section B – Builder’s response
Builder’s response to the Defect Rectification Request
| I agree to rectify the following Work [attach additional page(s) if insufficient space]: |
| I do not agree to rectify the following Work [attach additional page(s) if insufficient space]: |
| Date: |
| Signed by (there are two options – mark the option which applies with an X): | |
| Builder: | |
| Builder’s Representative: |
| Signature: |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Important note to the Builder
You must respond to the above Defect Rectification Request within 10 Business Days of receiving this request.
Unless you have reasonable grounds for doing so, you must rectify the item or items in the above Defect Rectification Request at your cost within 20 Business Days of receiving this request.
Important note to the Builder and the Building Owner
If a dispute arises between the parties as to whether there is a Defect or as to its extent or whether it has been rectified so as to accord with the contract, the dispute will be dealt with under the Dispute Resolution Procedure.
[Form ends]Form N – Notice of dispute
For use by: Building Owner or Builder
Related to: Clause 34
When to use this form
If either party considers that a dispute has arisen about any matter covered by this contract, that party must promptly give the other notice of the items of dispute. The notice must identify both the matter and the claim being made. This form can be used for this purpose.
Matters in dispute can be those that arose during the progress of the Work, arose after Completion of Work or arose after the contract was terminated.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
[Form begins]
Notification of dispute
| Regarding construction at [insert address of Building Site]: |
Notice of dispute
| To [insert name and address]: |
| I consider that a dispute has arisen regarding our contract. The items I consider to be in dispute are as follows [insert details of matter and claim being made. Attach additional page(s) if insufficient space]: |
| Date: |
| Signed by (there are four options – mark the option which applies with an X): | |
| Builder: | |
| Builder’s Representative: | |
| Building Owner(s): | |
| Building Owner’s Representative: |
| Signature: |
[Form ends]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Important note
The Builder’s Representative and the Building Owner’s Representative may only represent their principal in a dispute if they have been authorised in writing.
Following receipt of this notice, a meeting is to be arranged between the parties to negotiate in an honest and genuine attempt to resolve the dispute by discussion.
If the dispute is not resolved within 10 Business Days, the parties may lodge a complaint with Building Advice and Conciliation Victoria or ask for an inspector to be appointed under the Act.
Where a dispute exists, each of the parties must continue to perform its obligations under this contract unless the other party evinces an intention not to comply with Clause 34 of the contract.
This notice should be delivered either in person or using one of the preferred methods nominated in Clause 4 of the contract entitled ‘Contract Details’.Form O – Suspension of Work
For use by: Builder
Related to: Clause 35 and Clause 36
When to use this form
In circumstances where the Building Owner has failed to do certain things required by this contract, the Builder may suspend the Work. Before suspending Work, the Builder must give the Building Owner five Business Days notice of their intention to suspend the Work. The notice must specify clearly the failure or failures that caused the Builder to give it. This form can be used for this purpose.
This notice should be given to the Building Owner either in person or using one of the preferred methods nominated in Clause 4 of the contract entitled ‘Contract Details’.[Form begins]
Notice of intention to suspend Work
| Regarding construction at [insert address of Building Site]: |
Notice of suspension of Work
| I intend to suspend Work because you (the Building Owner) have failed to do the following in accordance with the terms of this contract (there are five options – mark the option which applies with an X): | |
| provide satisfactory evidence of the title to the Building Site after being required to do so under Clause 12.4 | |
| pay any amount due and payable to the Builder | |
| provide satisfactory evidence of its capacity to pay the Contract Price, including any Variations after being required to do so under Clause 12.10 | |
| provide the Builder or the Builder’s sub-contractors access to the Building Site | |
| an event of insolvency has occurred (see Clause 36.1 of the contract). |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
| Details of the Building Owner’s default [insert sufficient details of the Building Owner’s action/inaction to enable them to remedy the reason for the intended suspension of Work]: |
| Details of the Building Owner’s insolvency: |
| Date: |
| Signed by (there are two options – mark the option which applies with an X): | |
| Builder: | |
| Builder’s Representative: |
| Signature: |
Important note
If the Building Owner remedies the default within five Business Days, the Builder must recommence the Work within 10 Business Days unless the Builder has terminated the contract.
[Form ends]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Form P – Termination of contract by Builder
For use by: Builder
Related to: Clause 18.5 and Clause 38
When to use this form
The contract includes a number of clauses that provide for the termination of the contract. This form can be used by the Builder to terminate the contract.
This notice should be delivered either in person or using one of the preferred methods nominated in Clause 4 of the contract entitled ‘Contract Details’.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
[Form begins]
| To [insert name of Building Owner]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| Regarding construction at [insert address of Building Site]: | |
| From [insert name of Builder]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: |
Notice of intention to terminate the contract
| I give notice that the contract is terminated for the following reason(s) (there are six options – mark the option/s which apply with an X and provide details where applicable) | |
| failure by the Building Owner to respond to the Builder’s request to provide evidence of title or capacity to pay the Contract Price (see Clause 12.4 and Clause 12.10) | |
| failure by the Building Owner to pay a progress payment or any other amount due and payable to the Builder (see Clause 7) | |
| the Building Owner’s substantial or persistent obstruction of the Builder in the performance of the Work (see Clause 21.5) |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
| other substantial breach of the contract by the Building Owner [specify]: | |
| the Building Owner (although responsible for doing so) has not secured a building permit within 60 calendar days from the date of the contract (see Clause 18.5) | |
| the Building Owner has committed an act of bankruptcy, has been made bankrupt, has assigned assets for the benefit of creditors generally, has made a composition or other arrangement with creditors, or has gone into liquidation or receivership or otherwise lost full capacity (see Clause 36.1). |
| Date: |
| Signed by (there are two options – mark the option which applies with an X): | |
| Builder: | |
| Builder’s Representative: |
| Signature: |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ _________________ ____/____/________
Form Q – Termination of contract by Building Owner
For use by: Building Owner
Related to: Clause 18.5, Clause 23.5, Clause 38 and Clause 39
When to use this form
The contract includes a number of clauses that provide for the termination of the contract.
This form can be used by the Building Owner to terminate the contract. This notice should be delivered either in person or using one of the preferred methods nominated in Clause 4 of the contract entitled ‘Contract Details’.
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
[Form begins]
| To [insert name of Builder]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| From [insert name of Building Owner]: | |
| Postal address: | |
| Postcode: | |
| Contact person: | |
| Telephone: | |
| Regarding construction at [insert address of Building Site]: |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________Notice of intention to terminate the contract
| I give notice that the contract is terminated for the following reason(s) (there are eight options – mark the option/s which apply with an X and provide details where applicable): | |
| failure by the Builder to perform or progress the Work or the Approval Work in accordance with the contract (see Clause 37.5) | |
| failure by the Builder to provide materials that comply with the contract (see Clause 37.5) | |
| unreasonable failure by the Builder to replace or remedy defective Work or materials (see Clause 37.5) | |
| failure by the Builder to take out or maintain any insurance required by the contract (see Clause 37.5) | |
| other substantial breach of the contract by the Builder [specify]: | |
| the Builder (although responsible for doing so) has not secured a building permit within 60 calendar days from the date of the contract (see Clause 18.5) | |
| the Contract Price has risen by 15% or more (see Clause 38.1) | |
| the contract has not been completed within one and a half (1.5) times the period by which it was to have been completed (see Clause 38.1). |
| Date: |
| Signed by (there are two options – mark the option which applies with an X): | |
| Building Owner(s): | |
| Building Owner’s Representative: |
| Signature: |
[Form ends]
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Special Conditions Between Owner and the Builder
The builder and owner have agreed that the owner is to pay the cost of the following
| SPECIAL CONDITIONS | |
| A. |
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
Publisher information
Published by Consumer Affairs Victoria
Department of Justice & Regulation
121 Exhibition Street
Melbourne VIC 3000
Services from Consumer Affairs Victoria are available at Justice Service Centres in Ballarat, Bendigo, Box Hill, Broadmeadows, Dandenong, Geelong, Mildura, Morwell, Wangaratta and Warrnambool. Our mobile service regularly visits rural communities. Call 1300 55 81 81 or visit the Consumer Affairs Victoria website for more information.
TIS Telephone Interpreting Service 131 450
TTY Textphone or modem users only, ring the NRS on 133 677, then quote 1300 55 81 81
Callers who use Speech to Speech Relay dial 1300 555 727, then quote 1300 55 81 81
Consumer Affairs Victoria website
1300 55 81 81
Email Consumer Affairs Victoria
Owners (Initials) Date Builders (Initials) Date
____________________ ____/____/________ ____________________ ____/____/________
11. S. 30(4)(a): Examples of relevant standards include AS 1726 – 1993 and AS 2870–1995.
