Domestic Building Contracts Act 2000

Queensland Domestic Building Contracts Act 2000 Current as at 1 December 2013 Reprint note This is the last reprint before repeal. Repealed on 1 July 2015 by 2014 Act No. 57 s 79.

Information about this reprint This reprint shows the legislation current as at the date on the cover and is authorised by the Parliamentary Counsel. A new reprint of the legislation will be prepared by the Office of the Queensland Parliamentary Counsel when any change to the legislation takes effect. This change may be because a provision of the original legislation, or an amendment to it, commences or because a particular provision of the legislation expires or is repealed. When a new reprint is prepared, this reprint will become a historical reprint. Also, if it is necessary to replace this reprint before a new reprint is prepared, for example, to include amendments with a retrospective commencement, an appropriate note would be included on the cover of the replacement reprint and on the copy of this reprint at www.legislation.qld.gov.au. The endnotes to this reprint contain detailed information about the legislation and reprint. For example— • The table of reprints endnote lists any previous reprints and, for this reprint, gives details of any discretionary editorial powers under the Reprints Act 1992 used by the Office of the Queensland Parliamentary Counsel in preparing it. • The list of legislation endnote gives historical information about the original legislation and the legislation which amended it. It also gives details of uncommenced amendments to this legislation. For information about possible amendments to the legislation by Bills introduced in Parliament, see the Queensland Legislation Current Annotations at www.legislation.qld.gov.au/Leg_Info/ information.htm. • The list of annotations endnote gives historical information at section level. All Queensland reprints are dated and authorised by the Parliamentary Counsel. The previous numbering system and distinctions between printed and electronic reprints are not continued.

Queensland Domestic Building Contracts Act 2000 Contents Part 1 1 2 3 4 Part 2 Division 1 5 Division 2 6 7 8 9 Division 3 10 11 12 13 14 15 16 Division 4 17 17A 18 19 Page Preliminary Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Purpose of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Interpretation Dictionary Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Basic concepts Meaning of contract price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Meaning of domestic building contract . . . . . . . . . . . . . . . . . . . . . 9 Meaning of domestic building work . . . . . . . . . . . . . . . . . . . . . . . 10 Meaning of regulated contract . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Secondary concepts Meaning of associated third party amount . . . . . . . . . . . . . . . . . . 12 Meaning of cost escalation clause . . . . . . . . . . . . . . . . . . . . . . . . 13 Meaning of foundations data . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Meaning of home . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Meaning of provisional sum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Meaning of repair contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Meaning of variation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Other concepts Domestic building work carried out in stages . . . . . . . . . . . . . . . . 16 Multiple contracts for the same domestic building work . . . . . . . . 16 Effective completion date or period . . . . . . . . . . . . . . . . . . . . . . . 17 Mixed-purpose contracts—amount referable to contracted services ........................................ 19

Domestic Building Contracts Act 2000 Contents Division 5 20 21 22 23 24 25 Part 3 Division 1 26 27 28 29 30 31 32 Division 2 33 34 Division 3 35 Division 4 36 39 40 Part 4 Division 1 41 Division 2 42 43 44 Division 3 45 46 47 Page 2 References to particular terms Building contractors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Building owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contracted services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contract price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Subject work. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contracts and related documents The contract Contracts must be in writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General contents of contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . General contents—required matters . . . . . . . . . . . . . . . . . . . . . . General contents—required things. . . . . . . . . . . . . . . . . . . . . . . . Contracts must be signed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Documents that must be kept for 7 years . . . . . . . . . . . . . . . . . . . Forms of contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Details in contracts about delays affecting time estimates Calculable delays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Incalculable delays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contract price Inclusion of fixtures and fittings in contract price . . . . . . . . . . . . . Handling of contracts and related documents Copy of contract for building owner . . . . . . . . . . . . . . . . . . . . . . . Copies of contract related documents . . . . . . . . . . . . . . . . . . . . . Copy of contract information statement . . . . . . . . . . . . . . . . . . . . Warranties Incorporation of warranties Implied warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Implied warranties for all contracts Suitability of materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compliance with legal requirements . . . . . . . . . . . . . . . . . . . . . . Standard of work and exercise of care and skill . . . . . . . . . . . . . . Implied warranties for particular contracts Adherence to plans and specifications. . . . . . . . . . . . . . . . . . . . . Suitability of premises for occupation . . . . . . . . . . . . . . . . . . . . . . Carrying out work with reasonable diligence . . . . . . . . . . . . . . . . 20 20 20 20 21 21 21 22 23 24 25 25 25 25 27 27 28 28 29 30 30 32 32 32 32 33

48 Division 4 49 50 51 Part 5 Division 1 52 53 54 55 56 57 58 Division 2 59 60 61 62 63 Division 3 64 65 66 67 68 Division 4 69 70 71 Part 6 72 73 Domestic Building Contracts Act 2000 Contents Calculation of provisional sums . . . . . . . . . . . . . . . . . . . . . . . . . . General Warranties run with building . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Protection of rights given by warranties . . . . . . . . . . . . . . . . . . . . Proceedings for breach of warranties . . . . . . . . . . . . . . . . . . . . . . Restrictions relating to contracts Entering into contracts Licensing requirement for building contractors . . . . . . . . . . . . . . . Foundations data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mixed-purpose contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cost plus contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cost escalation clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Price change clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Arbitration clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prime cost items and provisional sums Stating amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of improper statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . Schedule of details . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence of cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Payments relating to contracts Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Progress payments for contracts other than designated stages contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Progress payments for designated stages contracts . . . . . . . . . . Completion payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Associated third party amounts . . . . . . . . . . . . . . . . . . . . . . . . . . Consequences of contravening requirements relating to payments Order to refund overpaid amounts . . . . . . . . . . . . . . . . . . . . . . . . Ending of contract for contravention of order . . . . . . . . . . . . . . . . Rights of building contractor if contract ended . . . . . . . . . . . . . . . Cooling-off period Right of building owner to withdraw from contract in cooling-off period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Restrictions affecting right of withdrawal in cooling-off period . . . 33 33 34 34 35 36 37 37 38 40 41 41 41 42 43 43 44 44 45 47 48 49 50 51 51 52 Page 3

Domestic Building Contracts Act 2000 Contents 74 75 76 77 78 Part 7 79 80 81 82 83 84 Part 8 85 86 87 Part 9 88 89 90 91 92 93 Part 10 94 96 97 98 99 100 101 Page 4 Right of building owner to withdraw from contract if cooling-off warning not given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Withdrawal procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rights and obligations of parties following withdrawal in cooling-off period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rights of building contractor following withdrawal for failure to give warning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Waiving right of withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Variations of contracts Variations must be in writing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . General contents of variation document. . . . . . . . . . . . . . . . . . . . General contents—appropriate provision for payments to reflect contract price changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Variation document must be signed . . . . . . . . . . . . . . . . . . . . . . . Copy of variation document for building owner. . . . . . . . . . . . . . . Right of building contractor to recover amount for variation . . . . . Building sites Building contractor does not acquire interest in land of resident owner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Control of building sites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Access to building sites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other matters relating to contracts Display of documents at display homes . . . . . . . . . . . . . . . . . . . . Construction of home based on display home . . . . . . . . . . . . . . . Ending contract if completion time extended or contract price increased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rights of building contractor if contract ended . . . . . . . . . . . . . . . Effect of failure by building contractor to comply with requirement ................................... Contracting out prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Miscellaneous Responsibility for acts or omissions of representatives . . . . . . . . Treatment of partnerships. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fines payable to commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . Relationship with other Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Approval of information statements . . . . . . . . . . . . . . . . . . . . . . . Supply of copies of information statements . . . . . . . . . . . . . . . . . Regulation-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 53 54 55 55 56 57 58 58 58 59 61 61 61 62 62 63 64 65 65 66 67 67 68 68 68 69

Part 12 102 103 Schedule 2 Domestic Building Contracts Act 2000 Contents Transitional provisions Application of Act to contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of QBCC Act to contracts. . . . . . . . . . . . . . . . . . . . . . Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 69 70 Endnotes 1 2 3 4 5 6 7 Index to endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Date to which amendments incorporated. . . . . . . . . . . . . . . . . . . . . . Key . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of reprints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . List of legislation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . List of annotations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Forms notified or published in the gazette . . . . . . . . . . . . . . . . . . . . . 79 79 80 80 81 83 84 Page 5

Domestic Building Contracts Act 2000 Part 1 Preliminary [s 1] Domestic Building Contracts Act 2000 [as amended by all amendments that commenced on or before 1 December 2013] An Act to regulate certain domestic building contracts, and for other purposes Part 1 Preliminary 1 Short title This Act may be cited as the Domestic Building Contracts Act 2000 . 2 Commencement This Act commences on a day to be fixed by proclamation. 3 Purpose of Act The purpose of this Act, in regulating domestic building contracts, is— (a) to achieve a reasonable balance between the interests of building contractors and building owners; and (b) to maintain appropriate standards of conduct in the building industry. Current as at 1 December 2013 Page 7

Domestic Building Contracts Act 2000 Part 2 Interpretation [s 4] 4 Act binds all persons This Act binds all persons, including the State, and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States. Editor’s note — See, however, section 7(2)(b) (Meaning of domestic building contract ). Part 2 Interpretation Division 1 Dictionary 5 Definitions The dictionary in schedule 2 defines particular words used in this Act. Division 2 Basic concepts 6 Meaning of contract price (1) This section does not apply to a cost plus contract. (2) The contract price , for a domestic building contract, is the total amount payable under the contract for the contracted services. (3) The contract price includes— (a) the amount the building contractor is entitled to receive and keep under the contract; and (b) the amount the building contractor is entitled to receive under the contract for payment to another person. (4) However, the contract price does not include the following— (a) an associated third party amount; Page 8 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 2 Interpretation [s 7] (b) an amount to which section 53(8) applies. (5) If a contract is varied, the reference in subsection (2) to the total amount payable under the contract is a reference to the total amount payable under the contract, as varied. 7 Meaning of domestic building contract (1) A domestic building contract is— (a) a contract to carry out domestic building work; or (b) a construction management contract under the Queensland Building and Construction Commission Act 1991 for the provision of building work services for domestic building work; or (c) another contract to manage the carrying out of domestic building work. (2) However, a domestic building contract does not include— (a) a contract between a building contractor and subcontractor; or (b) a contract between a building contractor and a building owner for the construction of 2 or more detached dwellings; or (c) a contract between the holder of an owner-builder permit and a building contractor; or (d) a contract under which the building owner is the State, an entity representing the State or a local government. (3) Subsection (4) applies if a building contractor and building owner— (a) enter into 2 or more separate contracts each for the construction of 1 detached dwelling; and (b) the separate contracts could be the subject of a single contract for the construction of 2 or more detached dwellings. Current as at 1 December 2013 Page 9

Domestic Building Contracts Act 2000 Part 2 Interpretation [s 8] (4) The separate contracts are taken to be a contract between a building contractor and a building owner for the construction of 2 or more detached dwellings. 8 Meaning of domestic building work (1) Each of the following is domestic building work — (a) the erection or construction of a detached dwelling; (b) the renovation, alteration, extension, improvement or repair of a home; (c) removal or resiting work for a detached dwelling. (2) However— (a) removal work for a detached dwelling is domestic building work only if the dwelling is intended to be resited at another place and used, at the place, as residential premises; and (b) resiting work for a detached dwelling is domestic building work only if the dwelling is intended to be used at the place at which it is being resited as residential premises. (3) Domestic building work includes— (a) work ( associated work ) associated with the erection, construction, removal or resiting of a detached dwelling; and (b) work ( associated work ) associated with the renovation, alteration, extension, improvement or repair of a home. (4) Without limiting subsection (3), associated work includes— (a) landscaping; and (b) paving; and (c) the erection or construction of a building or fixture associated with the detached dwelling or home. Page 10 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 2 Interpretation [s 8] Examples of buildings and fixtures for subsection (4)(c) — retaining structures, driveways, fencing, garages, carports, workshops, swimming pools and spas (5) For the erection or construction of a detached dwelling, domestic building work includes the provision of services or facilities to the dwelling or the property on which the dwelling is, or is to be, situated. (6) For the renovation, alteration, extension, improvement or repair of a home, domestic building work includes the provision of services or facilities to the home or the property on which the home is situated. Examples of services and facilities for subsections (5) and (6) — lighting, heating, ventilation, air conditioning, water supply, sewerage and drainage (7) Also, domestic building work includes— (a) site work relating to work mentioned in subsection (1), (3), (5) or (6); and (b) work declared under a regulation to be domestic building work if there are reasonable grounds for considering the work to be domestic building work. (8) However, domestic building work does not include excluded building work. (9) In this section— (a) a reference to a detached dwelling includes a reference to any part of a detached dwelling; and (b) a reference to a home includes a reference to any part of a home; and (c) a reference to site work includes a reference to work required to be carried out to gain access, or to remove impediments to access, to a site. (10) In this section— removal work , for a detached dwelling, means work relating to the dwelling carried out at the place at which the dwelling is located for relocating the dwelling to another place. Current as at 1 December 2013 Page 11

Domestic Building Contracts Act 2000 Part 2 Interpretation [s 9] resiting work , for a detached dwelling, means work relating to the dwelling carried out at a place for resiting the dwelling at the place following its removal from another place. 9 Meaning of regulated contract (1) A regulated contract is a domestic building contract for which the contract price is more than the regulated amount. (2) A regulated contract includes a cost plus contract under which the total amount payable for the contracted services is reasonably estimated to be more than the regulated amount. (3) A regulated contract includes a mixed-purpose contract under which the amount referable to the contracted services is more than the regulated amount. (4) However, a contract mentioned in subsection (3) is a regulated contract only to the extent to which the contract relates to the contracted services. Division 3 Secondary concepts 10 Meaning of associated third party amount (1) An associated third party amount , for a domestic building contract, is an amount a person, other than the building contractor, is entitled to receive directly from the building owner for— (a) conveying services to the building site; or (b) connecting or installing services for use at the building site; or (c) issuing a development approval or similar authorisation. Examples of services for subsection (1)(a) and (b) — gas, electricity, telephone, water and sewerage (2) However, an amount is an associated third party amount , for a domestic building contract, only if the matter for which it is payable relates to the carrying out of the subject work. Page 12 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 2 Interpretation [s 11] 11 Meaning of cost escalation clause (1) A cost escalation clause is a provision of a domestic building contract under which the contract price may be increased to reflect— (a) increased costs of labour or materials; or (b) increased costs caused by delays— (i) in providing the contracted services; or (ii) if the contracted services consist of managing the carrying out of the subject work—in carrying out the subject work. (2) However, a cost escalation clause does not include a provision allowing for an increase in the contract price to reflect— (a) cost increases resulting from the introduction of new, or changes to existing, government taxes or charges; or (b) prime cost items; or (c) provisional sums. 12 Meaning of foundations data (1) Foundations data is the information about a building site a building contractor exercising reasonable care and skill would need to have to prepare— (a) an appropriate footings design for the site and, if appropriate, an appropriate concrete slab design for the site; and (b) an adequate estimate of the cost of constructing the footings and, if appropriate, concrete slab. (2) The information mentioned in subsection (1) includes— (a) relevant information contained in, or obtainable from, reports, surveys, test results, plans, specifications or computations prescribed under a regulation; and (b) other information prescribed under a regulation. Current as at 1 December 2013 Page 13

Domestic Building Contracts Act 2000 Part 2 Interpretation [s 13] 13 Meaning of home (1) A home is any residential premises. (2) A home includes a part of commercial or industrial premises used as residential premises. (3) However, a home does not include the following— (a) premises not intended to be used for permanent habitation; (b) a guesthouse, hostel or similar residential premises; (c) a motel, residential club, residential hotel, residential part of licensed premises or serviced apartments; (d) a hospital, nursing home, aged care home or hostel or retirement village; (e) residential premises associated with a hospital or educational institution; (f) residential premises specifically set aside as a place at which specialised care services are supplied to children or disabled persons residing at the place; (g) a prison or similar establishment; (h) a caravan; (i) residential premises declared under a regulation not to be a home if there are reasonable grounds for considering the premises not to be a home. (4) Subsection (3)(e) applies to residential premises associated with a hospital only if the premises— (a) are used, or intended to be used, only or mainly by patients of, or staff employed at, the hospital; and (b) are not a detached dwelling. (5) Subsection (3)(e) applies to residential premises associated with an educational institution only if the premises— (a) are used, or intended to be used, only or mainly by students of the institution; and (b) are not a detached dwelling. Page 14 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 2 Interpretation [s 14] (6) In this section— caravan means a caravan under the Residential Tenancies and Rooming Accommodation Act 2008 . licensed premises means licensed premises under the Liquor Act 1992 . retirement village means a retirement village under the Retirement Villages Act 1988 . 14 Meaning of provisional sum (1) A provisional sum, for a domestic building contract, is an amount that is an estimate of the cost of providing particular contracted services. (2) However, subsection (1) applies only to contracted services for which the building contractor, after making all reasonable enquiries, can not state a definite amount when the contract is entered into. (3) The reference in subsection (1) to the cost of providing the contracted services includes a reference to the cost of supplying materials needed for the subject work. 15 Meaning of repair contract (1) A repair contract is a regulated contract under which the subject work is composed of any 1 or more of the following— (a) the repair of a home; (b) work associated with the repair of a home; (c) the provision, for the repair of a home, of services or facilities to the home or the property on which the home is situated; (d) site work relating to work mentioned in paragraph (a), (b) or (c). (2) In this section— Current as at 1 December 2013 Page 15

Domestic Building Contracts Act 2000 Part 2 Interpretation [s 16] repair includes an alteration, improvement or replacement that it is necessary or reasonable to carry out instead of effecting a repair. 16 Meaning of variation (1) A variation , of a domestic building contract, is— (a) an addition of domestic building work to the subject work; or (b) an omission from the subject work. (2) However, for a cost plus contract, an addition or omission is a variation only if the addition or omission is not reasonably contemplated by the contract. Division 4 Other concepts 17 Domestic building work carried out in stages (1) This section applies if a building contractor and building owner enter into a series of separate domestic building contracts for the carrying out of domestic building work in stages. (2) The separate contracts are taken to be a single contract for which the contract price is the sum of the contract prices for the separate contracts. (3) In this section, a reference to the contract price for a contract includes, for a cost plus contract, a reference to the total amount the building contractor is likely to receive under the contract. 17A Multiple contracts for the same domestic building work (1) This section applies if a building contractor and building owner enter into 2 or more separate contracts that— Page 16 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 2 Interpretation [s 18] (a) could be the subject of a single contract for carrying out domestic building work; and (b) if they were the subject of a single contract, would be a contract for carrying out domestic building work. (2) The separate contracts are taken to be a single contract for which the contract price is the sum of the contract prices for the separate contracts. Example for this section — A building contractor that manufactures and installs kitchens enters into one contract with a building owner for the manufacture of a kitchen and a second contract for its installation. 18 Effective completion date or period (1) The effective completion date , for a regulated contract that has a stated completion date, is the stated completion date, as adjusted under this section. (2) The effective completion period , for a regulated contract that has a stated completion period, is the stated completion period, as adjusted under this section. (3) For an allowance mentioned in section 33 for which a number of days is stated in the contract, the stated completion date or period must be adjusted to take account of any additional days required to be applied for the allowance for carrying out the subject work. (4) If the carrying out of the subject work is affected by a delay that is not a delay of a kind for which an allowance is required to be made under section 33, the stated completion date or period must be adjusted to take account of the actual number of days involved in the delay. (5) If the contract is varied and the building contractor has complied with the variation provisions for the variation, the stated completion date or period must be adjusted to take account of any additional days, or any reduction in the number of days, required to carry out the subject work. Current as at 1 December 2013 Page 17

Domestic Building Contracts Act 2000 Part 2 Interpretation [s 18] (6) If the contract is varied but the building contractor has not complied with a variation provision for the variation, the stated completion date or period— (a) must be adjusted to take account of any reduction in the number of days required to carry out the subject work; and (b) may, with the tribunal’s approval given on an application made, as provided under the QCAT Act, to the tribunal by the building contractor, be adjusted to take account of any additional days required to carry out the subject work. (7) However, subsection (3) applies only if the need for an allowance for the additional days could not reasonably have been foreseen by the building contractor when the contract was entered into. (8) Also, subsection (4) applies for a delay only if— (a) the contract contains a statement of the matters mentioned in section 34(2) for the delay; or (b) the reason for the delay could not reasonably have been foreseen by the building contractor when the contract was entered into. (9) Also, for subsection (5), if the variation is not a variation that was originally sought by the building owner, the subsection applies for an adjustment for additional days only if the ground of unforeseen circumstances applies. (10) The tribunal may give an approval for subsection (6)(b) only if it is satisfied that— (a) either of the following applies— (i) there are exceptional circumstances to warrant an allowance being made for the additional days; (ii) the building contractor would suffer unreasonable hardship if an allowance for the additional days were not made; and Page 18 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 2 Interpretation [s 19] (b) it would not be unfair to the building owner to make an allowance for the additional days. (11) For subsection (9), the ground of unforeseen circumstances applies if the relevant variation became necessary because of circumstances that could not have been reasonably foreseen by the building contractor when the contract was entered into. (12) In this section— variation provision means section 79, 80, 82 or 83. 19 Mixed-purpose contracts—amount referable to contracted services (1) For a mixed-purpose contract, the amount referable to the contracted services is the total of the following amounts— (a) the amount the building contractor is entitled to receive under the contract for unmixed contracted services; (b) an amount that is a reasonable estimate of the amount the building contractor is entitled to receive under the contract for mixed contracted services, based on a fair and reasonable apportionment of the contracted services and the additional element. (2) The reference in subsection (1)(a) to unmixed contracted services is a reference to contracted services for which the amount the building contractor is entitled to receive under the contract is a distinguishable amount. (3) The reference in subsection (1)(b) to mixed contracted services is a reference to contracted services— (a) that are associated with the additional element; and (b) for which the amount the building contractor is entitled to receive under the contract is not, because of the association, a distinguishable amount. (4) In this section— distinguishable amount , for a mixed-purpose contract, means an amount that— Current as at 1 December 2013 Page 19

Domestic Building Contracts Act 2000 Part 2 Interpretation [s 20] (a) the building contractor is entitled to receive under the contract for the contracted services; and (b) is clearly identifiable and distinguishable from any amount the building contractor is entitled to receive for the additional element. Division 5 References to particular terms 20 Building contractors In this Act, a reference to a building contractor in association with a reference to a domestic building contract is a reference to the building contractor under the contract. 21 Building owners In this Act, a reference to a building owner in association with a reference to a domestic building contract is a reference to the building owner under the contract. 22 Contracted services In this Act, a reference to contracted services in association with a reference to a domestic building contract is a reference to the contracted services for the contract. 23 Contracts (1) In this Act, if a reference is made to a domestic building contract and the contract’s contract price, the reference to the contract does not include a reference to a cost plus contract. (2) However, subsection (1) does not apply to references in sections 17, 64 and 68. Page 20 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 3 Contracts and related documents [s 24] 24 Contract price (1) This section applies to a reference in this Act to the contract price for a regulated contract in a context in which the reference is intended to refer to the actual amount of the contract price. (2) The reference is a reference to the amount constituting the contract price, to the extent the amount is known at the relevant time. 25 Subject work In this Act, a reference to subject work in association with a reference to a domestic building contract is a reference to the subject work for the contract. Part 3 Contracts and related documents Division 1 The contract 26 Contracts must be in writing A building contractor who enters into a regulated contract must ensure the contract— (a) is in written form when it is entered into; or (b) is put into written form— (i) as soon as practicable (but within 5 business days) after it is entered into; and (ii) before a start is made in carrying out the subject work. Maximum penalty—80 penalty units. Current as at 1 December 2013 Page 21

Domestic Building Contracts Act 2000 Part 3 Contracts and related documents [s 27] 27 General contents of contracts (1) The building contractor under a regulated contract must ensure the contract, in written form, complies with the formal requirements for a regulated contract. Maximum penalty—20 penalty units. (2) A regulated contract complies with the formal requirements for a regulated contract if the contract— (a) is in English and is readily legible; and (b) sets out in full all the terms of the contract; and (c) sets out the warranties that are part of the contract because of section 41; and (d) states the required matters; and Editor’s note — See section 28 (General contents—required matters). (e) contains the required things; and Editor’s note — See section 29 (General contents—required things). (f) includes any plans and specifications for the subject work; and (g) each time a word or phrase defined for the contract is used—indicates the word or phrase is defined in the contract’s definition provision; and (h) complies with any other requirements prescribed under a regulation. (3) If the formal requirement mentioned in subsection (2)(f) applies to a contract, and a development approval or similar authorisation is required for carrying out the subject work, the contract complies with the requirement only if the plans and specifications contain the appropriate information. (4) For subsection (3), if a detailed footing or slab design is required for obtaining the development approval or similar authorisation for the subject work, the plans contain the appropriate information if they contain— Page 22 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 3 Contracts and related documents [s 28] (a) a detailed footing or slab design suitable for inclusion in the development approval or similar authorisation; and (b) a floor plan drawn to scale; and (c) front and side elevation drawings drawn to scale. (5) For subsection (3), if a detailed footing or slab design is not required for obtaining the development approval or similar authorisation for the subject work, the plans contain the appropriate information if they contain— (a) a floor plan drawn to scale; and (b) a front elevation drawing drawn to scale; and (c) a side elevation drawing drawn to scale. (6) However, subsection (5) applies to a floor plan or drawing only if the plan or drawing is required for obtaining the development approval or similar authorisation for the subject work. (7) For subsection (3), the specifications contain the appropriate information if they contain the specification details for the contract, to the extent the specification details are not included in plans for the contract, or otherwise included in the contract. (8) In this section— specification details , for a regulated contract, means— (a) details of the subject work, including details of fixtures and fittings involved in the subject work; and (b) details of materials and products to be used for the subject work; and (c) details of finishes required for the subject work; and (d) other details prescribed by regulation. 28 General contents—required matters (1) This section sets out the required matters for a regulated contract for section 27(2)(d). Current as at 1 December 2013 Page 23

Domestic Building Contracts Act 2000 Part 3 Contracts and related documents [s 29] (2) The required matters are as follows— (a) the names and addresses of the parties to the contract; (b) whether or not the building owner is a resident owner; (c) the building contractor’s licence number, as it appears on the building contractor’s licence card; (d) the date the contract is made; (e) the location (including a lot-on-plan, or similar, description) of the building site for the subject work; (f) the date the subject work is to start, or how the date is to be decided; (g) if the starting date for the subject work is not yet known—that the building contractor will ensure that the work starts as soon as it is reasonably possible for it to be started; (h) except for a cost plus contract—the date the subject work is to be finished or, if the starting date for the work is not yet known, the number of days that will be required to finish the work once it is started; (i) the contract price or, for a cost plus contract, how the amount the building contractor is to receive under the contract is to be calculated. (3) A cost plus contract may state the matter mentioned in subsection (2)(h). 29 General contents—required things (1) This section sets out the required things for a regulated contract for section 27(2)(e). (2) The required things are as follows— (a) a detailed description of the subject work; (b) a conspicuous notice advising the building owner of the right the owner may have to withdraw from the contract under section 72; Page 24 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 3 Contracts and related documents [s 30] (c) a separate provision defining the key words and phrases used in the contract. Example of phrases for paragraph (c) — prime cost item and provisional sum 30 Contracts must be signed A regulated contract has effect only if it is signed by the building contractor and building owner (or their authorised agents). 31 Documents that must be kept for 7 years (1) Subsection (2) applies to a regulated contract entered into by a building contractor and the plans, specifications and variations relating to the contract. (2) The contractor must keep each document for 7 years from the date it is put into writing. Maximum penalty—100 penalty units. 32 Forms of contract The commission may prepare and publish suggested forms of domestic building contracts. Division 2 Details in contracts about delays affecting time estimates 33 Calculable delays (1) This section applies to the building contractor under a regulated contract in calculating, for section 28(2)(h)— (a) the date the subject work is to be finished; or Current as at 1 December 2013 Page 25

Domestic Building Contracts Act 2000 Part 3 Contracts and related documents [s 33] (b) if the starting date for the work is not known—the number of days that will be required to finish the work once it is started. (2) The building contractor must make the following allowances— (a) an allowance for the effect of inclement weather that is reasonable, having regard to the time of the year when the subject work is likely to be carried out; (b) a reasonable allowance for days that are non-working days for the subject work; (c) for any other matter that is reasonably likely to delay the carrying out of the subject work—an allowance that is reasonable, having regard to the nature of the contract. Maximum penalty—20 penalty units. (3) However, the building contractor is required to comply with subsection (2) only if— (a) for an allowance mentioned in subsection (2)(a)—there is a reasonable likelihood the time required to carry out the subject work will be affected by inclement weather; or (b) for an allowance mentioned in subsection (2)(b)—there is a reasonable likelihood the time required to carry out the subject work will be affected by the occurrence of non-working days; or (c) for an allowance mentioned in subsection (2)(c)—it is possible for the building contractor to adequately estimate the period of likely delay. (4) For each type of allowance required to be made by the building contractor under this section, the building contractor must ensure the contract states the number of days allowed by the building contractor. Maximum penalty for subsection (4)—20 penalty units. Page 26 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 3 Contracts and related documents [s 34] 34 Incalculable delays (1) This section applies if— (a) the building contractor under a regulated contract reasonably believes— (i) the carrying out of the subject work will be delayed; and (ii) that there is, or will be, a specific reason for the delay attributable to specific circumstances the building contractor reasonably believes exist, or will exist; and (b) it is not possible for the building contractor to adequately estimate the period of likely delay. (2) The building contractor must ensure the contract states— (a) the reason for the likely delay; and (b) that it is not possible for the building contractor to adequately estimate the period of likely delay; and (c) the general effect the delay is likely to have on the carrying out of the subject work. Maximum penalty—40 penalty units. (3) Subsection (1) does not apply for a delay caused by— (a) inclement weather; or (b) the occurrence of non-working days. Division 3 Contract price 35 Inclusion of fixtures and fittings in contract price (1) The cost of any fixture or fitting shown in plans and specifications forming part of a regulated contract is taken to be included in the contract price. (2) However, subsection (1) does not apply to a fixture or fitting if— Current as at 1 December 2013 Page 27

Domestic Building Contracts Act 2000 Part 3 Contracts and related documents [s 36] (a) the contract states the cost of the fixture or fitting is not included in the contract price; and (b) the building owner places the owner’s signature or initials, or seal, next to the statement. Division 4 Handling of contracts and related documents 36 Copy of contract for building owner As soon as practicable (but within 5 business days) after entering into a regulated contract, the building contractor must give the building owner a readily legible signed copy of the contract. Maximum penalty—20 penalty units. 39 Copies of contract related documents (1) This section applies if the building contractor under a regulated contract receives a contract related document for the contract. (2) If the contract related document is a certificate of inspection, the building contractor must give a copy of the document to the building owner as soon as practicable after receiving the document. Maximum penalty—20 penalty units. (3) If the contract related document is a document other than a certificate of inspection, the building contractor must give a copy of the document to the building owner as soon as practicable after the completion of the subject work. Maximum penalty—20 penalty units. (4) Subsection (1) or (2) does not apply to a building contractor if the building contractor reasonably believes the building owner already has a copy of the contract related document. (5) In this section— Page 28 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 3 Contracts and related documents [s 40] certificate of inspection , for a regulated contract, means a certificate that— (a) is issued under an Act following an inspection of the subject work, or a part of the subject work; and (b) contains a certification to the effect that the subject work, or a stated stage of the subject work, has been satisfactorily completed. contract related document , for a regulated contract, means— (a) a certificate of inspection; or (b) a report, notice, order or other document about the subject work given or issued by a supplier of services, including, for example, electricity, gas, telephone, water or sewerage. 40 Copy of contract information statement (1) The building contractor under a regulated contract must, as required under this section, give the building owner a copy of the appropriate contract information statement for the contract. Maximum penalty—20 penalty units. (2) Subsection (1) does not apply to a building contractor if the building contractor gave a copy of the statement to the building owner before the contract was entered into. (3) The statement must be given to the building owner— (a) when the contract is entered into; or (b) as soon as practicable (but within 5 business days) after the contract is entered into. (4) The statement may be given to the building owner separate from, or attached to, the contract. Current as at 1 December 2013 Page 29

Domestic Building Contracts Act 2000 Part 4 Warranties [s 41] Part 4 Warranties Division 1 Incorporation of warranties 41 Implied warranties (1) The warranties mentioned in division 2 are part of every regulated contract. (2) A warranty mentioned in a section of division 3 is part of each regulated contract that is a contract of the type to which the section applies. Division 2 Implied warranties for all contracts 42 Suitability of materials (1) The building contractor warrants that all materials to be supplied for use in the subject work— (a) will be good and, having regard to the relevant criteria, suitable for the purpose for which they are used; and (b) unless otherwise stated in the contract, will be new. (2) Subsection (1) applies to the building contractor for materials only if the materials are supplied by the responsible person for the contract. (3) Despite subsection (2), if the contract is being administered by an architect engaged by the building owner, subsection (1) does not apply to the building owner for materials if the responsible person is subject to the direction of the architect for supplying the materials. (4) Also, despite subsection (2), subsection (1) does not apply to the building contactor for materials if— (a) the building owner is responsible for nominating the materials for use in the subject work; and Page 30 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 4 Warranties [s 42] (b) either— (i) there are no reasonable grounds for not using the materials; or (ii) if there are reasonable grounds for not using the materials—the building owner insists on the materials being used despite written advice to the contrary given to the building owner by the building contractor. (5) A building owner is responsible for nominating materials for use in the subject work only if— (a) the building owner nominates the materials specifically; and (b) the nomination is made without any recommendation, representation, suggestion or other approach being made to the building owner by the building contractor— (i) supporting, or approving, the use of the materials; or (ii) criticising, or disapproving the use of, other materials that could be considered to be appropriate for use for the purpose for which the materials nominated by the building owner are to be used. (6) In this section— relevant criteria , for materials, means— (a) generally accepted practices or standards applied in the building industry for the materials; or (b) specifications, instructions or recommendations of manufacturers or suppliers of the materials. responsible person , for a regulated contract, means— (a) if the contract is a contract for carrying out the subject work—the building contractor; or Current as at 1 December 2013 Page 31

Domestic Building Contracts Act 2000 Part 4 Warranties [s 43] (b) if the contract is a contract for managing the carrying out of the subject work—the person responsible for carrying out the work. 43 Compliance with legal requirements The building contractor warrants the subject work will be carried out in accordance with all relevant laws and legal requirements, including, for example, the Building Act 1975 . 44 Standard of work and exercise of care and skill The building contractor warrants the subject work will be carried out— (a) in an appropriate and skilful way; and (b) with reasonable care and skill. Division 3 Implied warranties for particular contracts 45 Adherence to plans and specifications (1) This section applies to a regulated contract if plans and specifications form part of the contract. (2) The building contractor warrants the subject work will be carried out in accordance with the plans and specifications. 46 Suitability of premises for occupation (1) This section applies to a regulated contract if the subject work— (a) consists of the erection or construction of a detached dwelling to a stage suitable for occupation; or (b) is work intended to renovate, alter, extend, improve or repair a home to a stage suitable for occupation. Page 32 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 4 Warranties [s 47] (2) The building contractor warrants the detached dwelling or home will be suitable for occupation when the work is finished. 47 Carrying out work with reasonable diligence (1) This section applies to a regulated contract if— (a) the contract is a cost plus contract; and (b) the contract does not have a stated completion date or period. (2) The building contractor warrants the subject work will be carried out with reasonable diligence. 48 Calculation of provisional sums (1) This section applies to a regulated contract providing for a provisional sum. (2) The building contractor warrants the provisional sum has been calculated with reasonable care and skill, having regard to all the information reasonably available when the contract is entered into (including information about the nature and location of the building site). Division 4 General 49 Warranties run with building (1) An associated person for a regulated contract has the same rights for a breach of a warranty mentioned in division 2 or section 45 or 46 as if the person were the building owner. (2) However, subsection (1) applies to the associated person— (a) only if, at the relevant time, the person did not know, and could not reasonably have known, of the existence of the breach; and Current as at 1 December 2013 Page 33

Domestic Building Contracts Act 2000 Part 4 Warranties [s 50] (b) only to the extent the rights are rights that, immediately before the person became an associated person for the contract, were held by— (i) the building owner; or (ii) another associated person for the contract. (3) In this section— associated person , for a regulated contract, means a person, other than the building owner, who is the owner for the time being of the building in relation to which, or land on which, the subject work was carried out. relevant time , for an associated person, for a regulated contract, means the time the person entered into the agreement under which the person became an associated person for the contract. 50 Protection of rights given by warranties A provision of an agreement or other document that purports to restrict or take away the rights of a person for a breach of a warranty mentioned in this part is void. 51 Proceedings for breach of warranties (1) A proceeding for a breach of a warranty under this part for a regulated contract must be started within 6 years and 6 months after— (a) the subject work is finished; or (b) if the subject work is not finished—the stated completion date or period. (2) In a proceeding for a breach of a warranty mentioned in this part, it is a defence for the defendant to prove that the deficiencies of which the plaintiff complains arise from instructions given by the building owner contrary to the defendant’s written advice. Page 34 Current as at 1 December 2013

Part 5 Domestic Building Contracts Act 2000 Part 5 Restrictions relating to contracts [s 52] Restrictions relating to contracts Division 1 Entering into contracts 52 Licensing requirement for building contractors (1) This section applies if— (a) under the QBCC Act, a building contractor is required to hold a contractor’s licence for carrying out a particular kind of domestic building work; or (b) under another law of the State, including, for example, the Electrical Safety Act 2002 , a building contractor is required to hold a licence, permit or other authorisation for carrying out a particular kind of domestic building work. (2) The building contractor must not enter into a regulated contract to carry out, or manage the carrying out of, domestic building work of the particular kind, unless the building contractor is appropriately licensed for that kind of domestic building work. Maximum penalty—80 penalty units. (3) A building contractor is appropriately licensed for a particular kind of domestic building work if the building contractor— (a) holds a contractor’s licence authorising the building contractor to carry out that kind of domestic building work; or (b) holds a licence, permit or other authorisation under a law of the State, other than the QBCC Act, authorising the building contractor to carry out that kind of domestic building work. Current as at 1 December 2013 Page 35

Domestic Building Contracts Act 2000 Part 5 Restrictions relating to contracts [s 53] 53 Foundations data (1) This section applies if the subject work proposed for a regulated contract— (a) requires the construction or alteration of footings, or a concrete slab, for a building; or (b) may adversely affect the footings of a building or a concrete slab forming part of a building. (2) Before entering into the contract, the building contractor must obtain the foundations data that is appropriate for the building site, having regard to the following— (a) the Building Code of Australia; (b) the need for a drainage plan; (c) the need for engineer’s drawings and computations; (d) the need for information on the fall of the land at the building site. Maximum penalty—100 penalty units. (3) Nothing in subsection (2) requires a building contractor to commission the preparation of foundations data to the extent the data already exists and it is reasonable for the building contractor to rely on the data. (4) The building contractor must give a copy of any foundations data obtained by the building contractor for this section to the building owner on payment by the building owner of the costs incurred by the building contractor in obtaining the data. Maximum penalty—10 penalty units. (5) Subsection (4) does not apply to a building contractor for foundations data if— (a) the data is given to the building contractor by the building owner; or (b) the building contractor reasonably believes the building owner already has a copy of the data. Page 36 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 5 Restrictions relating to contracts [s 54] (6) The building contractor under a regulated contract can not seek from the building owner an amount not already provided for in the contract if— (a) the building contractor entered into the contract before obtaining the foundations data under subsection (2); and (b) the need for the additional amount could reasonably have been established, and the amount calculated, had the building contractor complied with the subsection. (7) For subsection (6), an amount is not taken to be provided for in a regulated contract only because the contract contains a provision allowing for an increase to be made of the contract price. (8) Nothing in this section prevents the building contractor from claiming an amount not provided for in the contract if— (a) the building contractor has complied with subsection (2); and (b) the need for the additional amount can not be established from the foundations data obtained by the building contractor. 54 Mixed-purpose contracts A building contractor must not enter into a mixed-purpose contract that would be a regulated contract unless the contract— (a) clearly describes the contracted services; and (b) clearly distinguishes the contracted services from the additional element; and (c) states the amount referable to the contracted services. Maximum penalty—100 penalty units. 55 Cost plus contracts (1) A building contractor must not enter into a cost plus contract that would be a regulated contract unless— Current as at 1 December 2013 Page 37

Domestic Building Contracts Act 2000 Part 5 Restrictions relating to contracts [s 56] (a) the contract is included in a class of contracts prescribed under a regulation; or (b) the cost of a substantial part of the subject work can not reasonably be calculated without some of the work being carried out. Maximum penalty—100 penalty units. (2) A building contractor must not enter into a cost plus contract that would be a regulated contract unless the contract contains a fair and reasonable estimate by the building contractor of the total amount the building contractor is likely to receive under the contract. Maximum penalty—100 penalty units. (3) If a building contractor enters into a cost plus contract in contravention of this section, the building contractor can not enforce the contract against the building owner. (4) However, the tribunal may, on an application made, as provided under the QCAT Act, to the tribunal by the building contractor, award the building contractor the cost of providing the contracted services plus a reasonable profit if the tribunal considers it would not be unfair to the building owner to make the award. 56 Cost escalation clauses (1) A cost escalation clause in a regulated contract is void unless— (a) the building owner’s signature or initials, or seal, is placed next to the clause; and (b) either— (i) the contract satisfies a cost escalation requirement; or (ii) the clause satisfies the cost escalation requirements. (2) For subsection (1)(b)(i), a regulated contract containing a cost escalation clause satisfies a cost escalation requirement if— Page 38 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 5 Restrictions relating to contracts [s 56] (a) the contract price is more than the set amount; or (b) the contract is to be administered by an architect engaged by the building owner. (3) For subsection (1)(b)(ii), a cost escalation clause in a regulated contract satisfies the cost escalation requirements if the clause— (a) is a cost escalation clause because of the operation of section 11(1)(b); and (b) is limited by condition to cases of delay satisfying the requirements of this section; and (c) provides for an increase of the contract price under this section. (4) For subsection (3)(b), the delay must be a delay— (a) for a delay happening before the subject work is started— (i) that is longer than 4 weeks; and (ii) for which the building contractor is not responsible; or (b) for a delay happening after the subject work is started— (i) for which the building owner is responsible; or (ii) if the contract is being administered by an architect engaged by the building owner—for which the architect is responsible. (5) For subsection (3)(c), the increase must not be more than the lesser of the following amounts— (a) the amount of the costs incurred by the building contractor because of the delay; (b) the formula amount for the delay. (6) In this section— formula amount , for a delay, means— Current as at 1 December 2013 Page 39

Domestic Building Contracts Act 2000 Part 5 Restrictions relating to contracts [s 57] (a) if the delay happens before the subject work is started—the amount representing 0.125% of the contract price for each week, or part of a week, of the delay after the first 4 weeks of the delay; or (b) if the delay happens after the subject work is started—the amount representing 0.05% of the contract price for each day of the delay. set amount means— (a) the amount, above $200000, prescribed under a regulation as the set amount; or (b) if an amount is not prescribed for paragraph (a)—$200000. 57 Price change clauses (1) A building contractor must not enter into a regulated contract containing a price change clause unless the contract contains a warning complying with this section. Maximum penalty—20 penalty units. (2) The warning must— (a) state the contract price is subject to change; and (b) state the provisions of the contract that allow for the contract price to be changed; and (c) appear as near as practicable to the first reference in the contract to the contract price. (3) If a warning is not included in a regulated contract as required under this section, any price change clause included in the contract has effect only to the extent it allows the contract price to decrease. (4) In this section— price change clause means a provision of a domestic building contract allowing for a change to be made to the contract price, but does not include a cost escalation clause. Page 40 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 5 Restrictions relating to contracts [s 58] 58 Arbitration clauses (1) A provision of a regulated contract, or other agreement, requiring that a dispute under the contract be referred to arbitration is void. (2) Subsection (1) does not apply to a provision of an agreement, other than a regulated contract, if the agreement is entered into after a dispute under the contract arises. Division 2 Prime cost items and provisional sums 59 Stating amounts (1) A building contractor must not enter into a regulated contract stating— (a) an amount for a prime cost item that is less than the reasonable cost of supplying and delivering the item; or (b) a provisional sum that is less than the reasonable cost of providing the contracted services to which the sum relates. Maximum penalty—50 penalty units. (2) Subsection (1) does not apply to a building contractor for an item to be supplied, or a sum stated, by the building owner. (3) In deciding, for subsection (1), what is a reasonable cost, regard must be had to— (a) the information the building contractor had, or reasonably should have had, when the contract was entered into; and (b) the nature and location of the building site. 60 Effect of improper statements (1) This section applies if a building contractor enters into a regulated contract in contravention of section 59(1). Current as at 1 December 2013 Page 41

Domestic Building Contracts Act 2000 Part 5 Restrictions relating to contracts [s 61] (2) The contravention does not make any provision of the contract illegal or void. (3) However, the tribunal may, on an application made, as provided under the QCAT Act, to the tribunal by the building owner, reduce the building owner’s liability, for the item or contracted services to which the stated amount or sum relates, to the extent the tribunal considers appropriate. 61 Schedule of details (1) A building contractor must not enter into a regulated contract providing for prime cost items or provisional sums unless the contract contains a separate schedule stating the required details for each item or sum. Maximum penalty—50 penalty units. (2) For subsection (1), the required details for a prime cost item are as follows— (a) a detailed description of the item; (b) a breakdown of cost estimates provided for in the allowance for the item; (c) if the building contractor proposes to charge an amount (the excess amount ) above the actual amount of any increase in the cost of the item—how the excess amount is to be calculated. (3) For subsection (1), the required details for a provisional sum are as follows— (a) a detailed description of the contracted services to which the sum relates; (b) a breakdown of cost estimates provided for in the sum; (c) if the building contractor proposes to charge an amount (the excess amount ) above the actual amount of any increase in the sum—how the excess amount is to be calculated. Page 42 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 5 Restrictions relating to contracts [s 62] (4) For subsection (2)(b) or (3)(b), the breakdown must, if appropriate, show, at least, the estimated quantities of materials involved and the unit cost to the building contractor. 62 Evidence of cost (1) This section applies if— (a) a regulated contract provides for a prime cost item or provisional sum; and (b) the building contractor receives a supporting document for the item or sum. (2) The building contractor must give a copy of the supporting document to the building owner before, or when, seeking payment under the contract of— (a) if the contract provides for progress payments—the related progress payment; or (b) if the contract does not provide for progress payments—the amount of the contract price. Maximum penalty—20 penalty units. (3) In this section— supporting document , for a prime cost item or provisional sum included in a regulated contract, means an invoice, receipt or other document showing the cost to the building contractor of the item, or relating to the sum. 63 Adjustments (1) A building contractor must not enter into a regulated contract providing for a prime cost item or provisional sum unless the contract complies with subsection (2). Maximum penalty—20 penalty units. (2) The contract must be to the effect that any prime cost or provisional sum adjustment is to be allowed for in an increase or decrease in— Current as at 1 December 2013 Page 43

Domestic Building Contracts Act 2000 Part 5 Restrictions relating to contracts [s 64] (a) if the contract provides for progress payments—the related progress payment; or (b) if the contract does not provide for progress payments—the payment of the amount of the contract price. Division 3 Payments relating to contracts 64 Deposits (1) The building contractor under a regulated contract must not, before starting to provide the contracted services, demand or receive a deposit under the contract of more than— (a) if the contract price is equal to or more than the set amount—5% of the contract price; or (b) if the contract price is less than the set amount—10% of the contract price. Maximum penalty—100 penalty units. (2) In this section, a reference to the contract price for a contract includes, for a cost plus contract, a reference to the contract estimated amount for the contract. (3) In this section— set amount means— (a) the amount, above $20000, prescribed under a regulation as the set amount; or (b) if an amount is not prescribed for paragraph (a)—$20000. 65 Progress payments for contracts other than designated stages contracts (1) This section does not apply to a designated stages contract. (2) The building contractor under a regulated contract must not demand or receive an amount under the contract, other than a Page 44 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 5 Restrictions relating to contracts [s 66] deposit, unless the amount is directly related to the progress of the work— (a) carried out under the contract; or (b) the carrying out of which has been managed under the contract. Maximum penalty—50 penalty units. (3) Subsection (2) does not apply to a building contractor if— (a) the parties to the contract agree the subsection is not to apply; and (b) the agreement is made in the way, and satisfies any requirements, prescribed under a regulation. 66 Progress payments for designated stages contracts (1) This section only applies to designated stages contracts. (2) This section has effect for a contract’s original contract price. (3) For a contract to build only to the enclosed stage, the building contractor must not demand or receive, at the completion of a stage specified in column 1 of the following table, an amount that is more than the percentage of the original contract price specified in column 2 of the table opposite the stage— Table—Contracts to build to enclosed stage Column 1 Stage Column 2 Percentage of original contract price Base stage Frame stage 20% 25% Maximum penalty—50 penalty units. (4) For a contract to build only to the fixing stage, the building contractor must not demand or receive, at the completion of a stage specified in column 1 of the following table, an amount Current as at 1 December 2013 Page 45

Domestic Building Contracts Act 2000 Part 5 Restrictions relating to contracts [s 66] that is more than the percentage of the original contract price specified in column 2 of the table opposite the stage— Table—Contracts to build to fixing stage Column 1 Stage Column 2 Percentage of original contract price Base stage Frame stage Enclosed stage 12% 18% 40% Maximum penalty—50 penalty units. (5) For a contract to build all the stages mentioned in this section, the building contractor must not demand or receive, at the completion of a stage specified in column 1 of the following table, an amount that is more than the percentage of the original contract price specified in column 2 of the table opposite the stage— Table—Contracts to build to all stages Column 1 Stage Column 2 Percentage of original contract price Base stage Frame stage Enclosed stage Fixing stage 10% 15% 35% 20% Maximum penalty—50 penalty units. (6) Subsection (3), (4) or (5) does not apply to a building contractor if— (a) the parties to the contract agree the subsection is not to apply; and Page 46 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 5 Restrictions relating to contracts [s 67] (b) the agreement is made in the way, and satisfies any requirements, prescribed under a regulation. (7) In this section— original contract price , for a regulated contract, means the contract price for the contract before any adjustment of the price is made because of— (a) a prime cost, or provisional sum, adjustment; or (b) a variation of the contract. 67 Completion payments (1) This section only applies to a regulated contract for which the subject work consists of— (a) the erection or construction of a detached dwelling to a stage suitable for occupation; or (b) the renovation, alteration, extension, improvement or repair of a home to a stage suitable for occupation. (2) The building contractor under a regulated contract must not demand all or part of the completion payment unless the practical completion stage has been reached. Maximum penalty—100 penalty units. (3) The building contractor under a regulated contract must not receive all or part of the completion payment unless— (a) the practical completion stage has been reached; and (b) if the building owner claims the stage has been reached with minor defects or minor omissions—the first and second requirements stated in subsections (4) and (5) have been complied with. Maximum penalty—100 penalty units. (4) The first requirement is that the building contractor must have given the building owner a document (the defects document ) that— Current as at 1 December 2013 Page 47

Domestic Building Contracts Act 2000 Part 5 Restrictions relating to contracts [s 68] (a) lists the minor defects and minor omissions that both the building contractor and building owner agree exist; and (b) states by when the building contractor is to correct the listed defects and omissions; and (c) lists the minor defects and omissions the building owner claims exist, but that are not agreed by the building contractor to exist; and (d) is signed by the building contractor. (5) The second requirement is that the building contractor must have made all reasonable efforts to have the building owner sign the defects document to acknowledge its contents. (6) In this section— completion payment , for a regulated contract, means a payment required to be made under the contract by the building owner to the building contractor for the practical completion stage. practical completion stage , for a regulated contract, means the stage when— (a) the subject work has been completed in accordance with the contract and all relevant statutory requirements, either— (i) without any omissions or defects; or (ii) apart from minor omissions or minor defects; and (b) the detached dwelling or home is reasonably suitable for habitation. 68 Associated third party amounts (1) A building contractor must not enter into a regulated contract for which there is an associated third party amount unless— (a) the contract states that the cost of the work or thing to which the amount relates is not included in the contract price; and Page 48 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 5 Restrictions relating to contracts [s 69] (b) the statement appears as near as practicable to the first reference in the contract to the contract price. Maximum penalty—40 penalty units. (2) In this section, a reference to the contract price for a contract includes, for a cost plus contract, a reference to the contract estimated amount for the contract. Division 4 Consequences of contravening requirements relating to payments 69 Order to refund overpaid amounts (1) This section applies if— (a) a court finds a charge against a building contractor for an offence against a payment section proven; and (b) the offence involves the receipt of an amount by the building contractor. (2) The court may order the building contractor— (a) to refund to the building owner— (i) the amount paid to the building contractor that the building contractor was not, under the payment section, entitled to receive; or (ii) a part of the amount mentioned in paragraph (a); and (b) if the building contractor contravenes the order—to pay the building owner interest on the amount to which the contravention relates, calculated at the rate, and on the basis, the court considers appropriate. (3) The power of the court under subsection (2) is additional to any other power the court has to impose a penalty. (4) The refund of an amount by the building contractor to the building owner under an order mentioned in subsection (2) does not stop the building contractor from later demanding Current as at 1 December 2013 Page 49

Domestic Building Contracts Act 2000 Part 5 Restrictions relating to contracts [s 70] and receiving payment of the amount under the contract as part of— (a) for a fixed price contract—the contract price; or (b) for a cost plus contract—the total amount the building contractor is entitled to receive. 70 Ending of contract for contravention of order (1) The building owner under a regulated contract may end the contract if the building contractor contravenes a payment order. (2) To end the contract, the building owner must give the building contractor a notice under this section. (3) The notice must— (a) be in writing; and (b) be signed by the building owner; and (c) state the building owner is ending the contract under this section; and (d) state the ground on which the building owner is ending the contract; and (e) give details of the ground. (4) In this section— payment order means an order made by a court or the tribunal requiring the building contractor under a regulated contract— (a) to refund to the building owner an amount paid to the building contractor by the building owner that the building contractor was not, under a payment section, entitled to receive; or (b) to pay to the building owner interest on the amount, or a part of the amount, mentioned in paragraph (a). Page 50 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 6 Cooling-off period [s 71] 71 Rights of building contractor if contract ended (1) This section applies if a building owner ends a regulated contract under section 70. (2) The building contractor is entitled to receive a reasonable amount for the contracted services provided to the time the contract is ended. (3) However, the building contractor is not entitled to receive an amount that is more than the amount the building contractor would have been entitled to receive under the contract. Part 6 Cooling-off period 72 Right of building owner to withdraw from contract in cooling-off period (1) The building owner under a regulated contract may withdraw from the contract under this section. (2) The building owner may withdraw from the contract within 5 business days after the receipt day for the contract. (3) If 5 business days have elapsed since the contract was entered into and there is no receipt day for the contract, the building owner may withdraw from the contract. (4) Nothing in subsection (3) affects the right of the building owner to withdraw from the contract under subsection (2) if a receipt day subsequently applies to the contract. (5) In this section— receipt day , for a regulated contract, means— (a) the day on which the building owner receives the following documents from the building contractor— (i) a copy of the signed contract; (ii) a copy of the appropriate contract information statement for the contract; or Current as at 1 December 2013 Page 51

Domestic Building Contracts Act 2000 Part 6 Cooling-off period [s 73] (b) if the documents mentioned in paragraph (a) are received by the building owner from the building contractor on different days—the later of the days. 73 Restrictions affecting right of withdrawal in cooling-off period (1) This section applies despite section 72. (2) A building owner may not withdraw from a regulated contract (the current contract ) under section 72 if— (a) the building owner and building contractor previously entered into a regulated contract (the previous contract ); and (b) the terms of the previous contract and current contract are substantially the same; and (c) the contracted services for the previous contract and current contract— (i) are substantially the same; and (ii) relate to the same detached dwelling, home or land. (3) Also, a building owner may not withdraw from a regulated contract under section 72 if— (a) before entering into the contract, the building owner received formal legal advice about the contract; or (b) when, or after, the contract is entered into, the building owner tells the building contractor that the building owner received formal legal advice about the contract before entering into the contract. (4) In this section— formal legal advice means independent advice— (a) given by a practising legal practitioner; and (b) for the giving of which an amount is paid, or is payable, to the legal practitioner by the person to whom the advice is given. Page 52 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 6 Cooling-off period [s 74] practising legal practitioner means a lawyer authorised under a law of the State to practise as a lawyer for purposes including the giving, for reward, of advice, including, for example, advice about domestic building contracts. 74 Right of building owner to withdraw from contract if cooling-off warning not given (1) This section applies if a regulated contract does not contain a notice, as required under section 29(2), advising the building owner of the right the owner may have to withdraw from the contract under section 72. (2) The building owner may withdraw from the contract within 7 days of becoming aware that the contract should have contained the notice. 75 Withdrawal procedure (1) To withdraw from a regulated contract under section 72 or 74, the building owner must, within the time allowed under the section for the withdrawal— (a) give a withdrawal notice to the building contractor; or (b) leave a withdrawal notice at the address shown as the building contractor’s address in the contract; or (c) serve a withdrawal notice on the building contractor in accordance with any provision in the contract providing for service of notices on the building contractor by the building owner. (2) In this section— withdrawal notice means a written notice signed by the building owner under a regulated contract stating— (a) that the building owner withdraws from the contract; and (b) the section of this Act under which the withdrawal is made. Current as at 1 December 2013 Page 53

Domestic Building Contracts Act 2000 Part 6 Cooling-off period [s 76] 76 Rights and obligations of parties following withdrawal in cooling-off period (1) This section applies if a building owner withdraws from a regulated contract under section 72. (2) If there is a pre-paid amount for the contract that is not less than the retainable amount, the building contractor— (a) may keep an amount equal to the retainable amount out of the prepaid amount; and (b) must refund any balance of the prepaid amount to the building owner. (3) If there is a pre-paid amount for the contract that is less than the retainable amount, the building owner must pay the building contractor an amount equal to the difference between the retainable amount and the prepaid amount. (4) If there is no pre-paid amount for the contract, the building owner must pay the building contractor an amount equal to the retainable amount. (5) If an amount is not paid by a person as required under this section, the person to whom it is payable may recover the amount from the other person as a debt. (6) Except as provided under subsection (3) or (4), the building owner is not liable to the building contractor in any way for withdrawing from the contract. (7) In this section, a reference to the pre-paid amount for the contract is a reference to the amount paid to the building contractor under the contract by the building owner before the building owner withdrew from the contract. (8) Also, in this section, a reference to the retainable amount for the contract is a reference to the sum of— (a) $100; and (b) an amount equal to any out-of-pocket expenses reasonably incurred by the building contractor before the building owner withdrew from the contract. Page 54 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 6 Cooling-off period [s 77] 77 Rights of building contractor following withdrawal for failure to give warning (1) This section applies if a building owner withdraws from a regulated contract under section 74. (2) The building contractor is entitled to receive a reasonable amount for the contracted services provided to the time of withdrawal. (3) However, the building contractor is not entitled to receive an amount that is more than the amount the building contractor would have been entitled to receive under the contract. 78 Waiving right of withdrawal (1) The building owner under a repair contract may waive the building owner’s right to withdraw from the contract. (2) To waive the right, the building owner must— (a) give a waiver notice to the building contractor; or (b) leave a waiver notice at the address shown as the building contractor’s address in the contract; or (c) serve a waiver notice on the building contractor in accordance with any provision in the contract providing for service of notices on the building contractor by the building owner. (3) This section has effect despite section 93. (4) In this section— waiver notice means a written notice signed by the building owner under a repair contract stating that the building owner waives the building owner’s right to withdraw from the contract. Current as at 1 December 2013 Page 55

Domestic Building Contracts Act 2000 Part 7 Variations of contracts [s 79] Part 7 Variations of contracts 79 Variations must be in writing (1) The building contractor under a regulated contract must ensure any variation of the contract agreed to between the building contractor and building owner is put into written form— (a) within the shortest practicable time; and (b) for a variation consisting of an addition to the subject work—before any domestic building work the subject of the variation is carried out. Maximum penalty—20 penalty units. (2) Subsection (1) does not apply to a building contractor for a variation of a contract if— (a) the variation is for domestic building work that is required to be carried out urgently; and (b) it is not reasonably practicable, in the particular circumstances, to produce a variation document before carrying out the work. (3) Subsection (4) applies if— (a) a proposed variation of a regulated contract has not yet been agreed to between the building contractor under the contract and the building owner, but is proposed to come into existence on the signing of a variation document by the owner and the contractor; and (b) the variation document is to be the first and only agreement between the building contractor and the building owner for the particular variation. (4) If the proposed variation consists of an addition to the subject work, the building contractor must ensure that no domestic building work the subject of the proposed variation is carried out until the variation document has been signed. Maximum penalty—20 penalty units. Page 56 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 7 Variations of contracts [s 80] (5) When the variation document is signed, the following provisions do not apply for the variation— (a) subsections (1) and (2); (b) section 82; (c) section 83(1)(b); (d) section 84(2)(a) and (3)(a)(i), to the extent the provisions concern sections 82 and 83(1)(b). 80 General contents of variation document (1) The building contractor under a regulated contract must ensure a variation document for the contract complies with the formal requirements for a variation document. Maximum penalty—20 penalty units. (2) A variation document complies with the formal requirements for a variation document if the document— (a) is in English and is readily legible; and (b) describes the variation; and (c) if the variation was sought by the building contractor—states the reason for the variation; and (d) if the variation will result in a delay affecting the subject work—states the building contractor’s reasonable estimate for the period of delay; and (e) for a fixed price contract—states the change of the contract price because of the variation, or how the change of the contract price is to be worked out; and (f) for a cost plus contract—states a fair and reasonable estimate of the costs associated with the addition or omission the subject of the variation; and (g) if the contract provides for progress payments—makes appropriate provision for payments under the contract to reflect any change of the contract price caused by the variation. Current as at 1 December 2013 Page 57

Domestic Building Contracts Act 2000 Part 7 Variations of contracts [s 81] 81 General contents—appropriate provision for payments to reflect contract price changes (1) This section sets out how a variation document complies with the requirement mentioned in section 80(2)(g) (the payment requirement ). (2) If the variation results in an increase in the contract price, the variation document complies with the payment requirement if it states when the increase is to be paid. (3) However, the increase can not be required to be paid before work the subject of the variation is started. (4) If the variation results in a decrease in the contract price, the variation document complies with the payment requirement if it states when the decrease is to be accounted for. Example for subsection (4) — The variation document might identify a particular progress payment in which the decrease is to be accounted for. (5) The variation document complies with the payment requirement if the provision of the document stating when the increase is to be paid, or when the decrease is to be accounted for, is initialled by the building owner. 82 Variation document must be signed As soon as practicable after an appropriate variation document is made, the building contractor must— (a) sign the document; and (b) take all reasonable steps to try to ensure the document is signed by the building owner. Maximum penalty—20 penalty units. 83 Copy of variation document for building owner (1) As soon as practicable (but within 5 business days) after a variation of a regulated contract is agreed to between the Page 58 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 7 Variations of contracts [s 84] building contractor and building owner, the building contractor must give the building owner— (a) a readily legible signed copy of an appropriate variation document for the variation; or (b) if acceptable circumstances apply to the building contractor—a readily legible copy of an appropriate variation document for the variation, signed by the building contractor. Maximum penalty—20 penalty units. (2) For subsection (1)(b), acceptable circumstances apply to the building contractor if the building contractor has taken all reasonable steps to try to ensure an appropriate variation document for the variation is signed by the building owner, but the building owner has not signed the document. 84 Right of building contractor to recover amount for variation (1) This section applies if— (a) the building contractor under a regulated contract gives effect to a variation of the contract; and (b) the variation consists of— (i) an addition to the subject work; or (ii) an omission from the subject work that results in the building contractor incurring additional costs. (2) If the variation was originally sought by the building owner, the building contractor may recover an amount for the variation— (a) only if the building contractor has complied with sections 79, 80, 82 and 83; or (b) only with the tribunal’s approval given on an application made, as provided under the QCAT Act, to the tribunal by the building contractor. Current as at 1 December 2013 Page 59

Domestic Building Contracts Act 2000 Part 7 Variations of contracts [s 84] (3) If the variation is not a variation that was originally sought by the building owner, the building contractor may recover an amount for the variation— (a) only if— (i) the building contractor has complied with sections 79, 80, 82 and 83; and (ii) the ground of unforeseen circumstances applies; or (b) only with the tribunal’s approval given on an application made, as provided under the QCAT Act, to the tribunal by the building contractor. (4) The tribunal may approve the recovery of an amount by a building contractor for a variation only if the tribunal is satisfied that— (a) either of the following applies— (i) there are exceptional circumstances to warrant the conferring of an entitlement on the building contractor for recovery of an amount for the variation; (ii) the building contractor would suffer unreasonable hardship by the operation of subsection (2)(a) or (3)(a); and (b) it would not be unfair to the building owner for the building contractor to recover an amount. (5) For subsection (3)(a)(ii), the ground of unforeseen circumstances applies if the variation became necessary because of circumstances that could not have been reasonably foreseen by the building contractor when the contract was entered into. (6) If the building contractor is entitled to recover an amount for the variation of a fixed price contract, the amount is— (a) the increase in the contract price stated, or worked out in the way stated, in the appropriate variation document for the variation; or Page 60 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 8 Building sites [s 85] (b) if paragraph (a) does not apply—the cost of carrying out the variation plus a reasonable profit. (7) If the building contractor is entitled to recover an amount for the variation of a cost plus contract, the amount is the amount worked out in the way stated in the contract. Part 8 Building sites 85 Building contractor does not acquire interest in land of resident owner (1) A domestic building contract does not give the building contractor an interest in land of a resident owner for the Land Title Act 1994 , section 122. (2) A building contractor who lodges a caveat claiming an interest in land of a building owner under a domestic building contract knowing the owner to be a resident owner commits an offence. Maximum penalty for subsection (2)—100 penalty units. 86 Control of building sites A domestic building contract does not give the building contractor a greater right to occupy a building site than that of a contractual licensee. 87 Access to building sites (1) The building contractor under a regulated contract must permit the building owner, or a person authorised by the building owner (the building owner’s representative )— (a) to have reasonable access to the building site under the building contractor’s supervision; and (b) to view any part of the subject work. Current as at 1 December 2013 Page 61

Domestic Building Contracts Act 2000 Part 9 Other matters relating to contracts [s 88] Maximum penalty—20 penalty units. (2) A building owner or building owner’s representative exercising a right of access under subsection (1) must not interfere with the subject work. (3) If additional costs are incurred, or a delay happens, in carrying out the subject work because the building owner or building owner’s representative contravenes subsection (2), the building owner is liable for the costs or delay. (4) However, the building owner is liable for the costs or delay only if, within 5 days after the contravention comes to the building contractor’s knowledge, the building contractor gives the building owner written notice of the costs or delay. Part 9 Other matters relating to contracts 88 Display of documents at display homes A person who makes a display home available for inspection must ensure the following documents are prominently displayed in the home— (a) a copy of the plans and specifications used for the home’s construction; (b) a draft copy of the domestic building contract that the building contractor by or for whom the display home is made available for inspection would be prepared to enter into to construct a similar home. Maximum penalty—100 penalty units. 89 Construction of home based on display home (1) This section applies if— Page 62 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 9 Other matters relating to contracts [s 90] (a) a display home is made available for inspection by or for a building contractor; and (b) a building owner enters into a regulated contract with the building contractor for the construction of a similar home (the contract home ). (2) In constructing the contract home, the building contractor must— (a) carry out the construction in accordance with the same plans and specifications as were used for the construction of the display home; and (b) carry out the construction to at least the same standards of work quality as the display home; and (c) use materials that are at least the same quality as the materials used in the construction of the display home. Maximum penalty—100 penalty units. (3) Subsection (2) does not apply to a building contractor to the extent the contract— (a) provides for the construction of the contract home to differ from the display home; and (b) specifically identifies the differences. 90 Ending contract if completion time extended or contract price increased (1) The building owner under a regulated contract may end the contract if— (a) the contract price rises by 15% or more after the contract is entered into because of the operation of a cost escalation clause contained in the contract; or (b) the subject work is not finished within a period that is 1.5 times— (i) if the contract has an effective completion date—the period starting on the starting date for Current as at 1 December 2013 Page 63

Domestic Building Contracts Act 2000 Part 9 Other matters relating to contracts [s 91] the contract and ending on the effective completion date; or (ii) if the contract has an effective completion period—the period. (2) However, the building owner may end the contract only if— (a) the reason for the rise in price, or increase in time, could reasonably have been foreseen by the building contractor when the contract was entered into; and (b) for a rise in price—the rise is not caused by a delay for which the building owner is responsible. (3) To end the contract, the building owner must give the building contractor a notice under this section. (4) The notice mentioned in subsection (3) must— (a) be in writing; and (b) be signed by the building owner; and (c) state the building owner is ending the contract under this section; and (d) state the ground on which the building owner is ending the contract; and (e) give details of the ground. (5) In this section— starting date , for a regulated contract, means the date stated in the contract as the date the subject work is to start. 91 Rights of building contractor if contract ended (1) This section applies if a building owner ends a regulated contract under section 90. (2) The building contractor is entitled to receive a reasonable amount for the contracted services provided to the time the contract is ended. Page 64 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 9 Other matters relating to contracts [s 92] (3) However, the building contractor is not entitled to receive an amount that is more than the amount the building contractor would have been entitled to receive under the contract. 92 Effect of failure by building contractor to comply with requirement Unless the contrary intention appears in this Act, a failure by a building contractor to comply with a requirement under this Act in relation to a domestic building contract does not make the contract illegal, void or unenforceable. 93 Contracting out prohibited (1) A domestic building contract is void to the extent to which it— (a) is contrary to this Act; or (b) purports to annul, exclude or change a provision of this Act. (2) An agreement (other than a domestic building contract) is void to the extent to which it seeks to exclude, change or restrict a right conferred under this Act in relation to a domestic building contract. (3) Nothing in this section prevents the parties to a domestic building contract from including provisions in the contract that impose greater or more onerous obligations on a building contractor than are imposed under this Act. (4) Subsections (1) and (2) apply subject to any contrary intention in this Act. Current as at 1 December 2013 Page 65

Domestic Building Contracts Act 2000 Part 10 Miscellaneous [s 94] Part 10 Miscellaneous 94 Responsibility for acts or omissions of representatives (1) This section applies for a proceeding for an offence against this Act. (2) If it is relevant to prove a person’s state of mind about a particular act or omission, it is enough to show— (a) the act was done or omitted to be done by a representative of the person within the scope of the representative’s actual or apparent authority; and (b) the representative had the state of mind. (3) An act done or omitted to be done for a person by a representative of the person within the scope of the representative’s actual or apparent authority is taken to have been done or omitted to be done also by the person. (4) However, subsection (3) does not apply to the person if the person proves the person could not, by the exercise of reasonable diligence, have prevented the act or omission. (5) In this section— representative means— (a) of a corporation—an executive officer, employee or agent of the corporation; or (b) of an individual—an employee or agent of the individual. state of mind , of a person, includes— (a) the person’s knowledge, intention, opinion, belief or purpose; and (b) the person’s reasons for the intention, opinion, belief or purpose. Page 66 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 10 Miscellaneous [s 96] 96 Treatment of partnerships (1) Subject to this section, this Act applies to a partnership as if the partnership were a person. (2) An obligation or liability that, apart from this subsection, would be imposed by this Act on a person that is a partnership is imposed on each partner, but may be discharged by any of the partners. (3) An amount that, apart from this subsection, would be payable under this Act by a person that is a partnership is jointly and severally payable by the partners. (4) If, because of the operation of subsection (1), an offence against a provision of this Act is taken to have been committed by a partnership, the offence is taken to have been committed by each of the partners. (5) However, it is a defence for a partner to prove— (a) if the partner was in a position to influence the conduct of the partnership in relation to the offence—the partner exercised reasonable diligence to ensure the partnership complied with the provision; or (b) the partner was not in a position to influence the conduct of the partnership in relation to the offence. 97 Fines payable to commission (1) This section applies if, in a proceeding for an offence against this Act, a court imposes a fine for the offence. (2) The fine must be paid to the commission. (3) However, if a person other than the commission prosecutes the offence, subsection (2) does not apply to any part of the fine the court orders be paid to the person prosecuting. Current as at 1 December 2013 Page 67

Domestic Building Contracts Act 2000 Part 10 Miscellaneous [s 98] 98 Relationship with other Acts (1) The Commercial Arbitration Act 2013 does not apply to domestic building work unless the relevant arbitration agreement under that Act— (a) is an agreement other than a domestic building contract; and (b) is entered into after the dispute to which it relates arises. (2) The Subcontractors’ Charges Act 1974 does not apply to domestic building work relating to a detached dwelling if the work— (a) is carried out by a building contractor for an individual; and (b) is not for a business carried on by the individual, either alone or as a member of a partnership. 99 Approval of information statements (1) The commission must approve a statement containing general information about regulated contracts for the benefit of building owners. (2) Without limiting subsection (1), the statement may contain information about the following— (a) the rights and duties of building owners and building contractors under regulated contracts; (b) the procedures for resolving disputes under regulated contracts. (3) The commission may approve different statements for different classes of contracts. 100 Supply of copies of information statements (1) The chief executive must keep copies of the contract information statements available for supply to persons and permit a person to obtain a copy of the statements on payment of the fee prescribed under a regulation. Page 68 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Part 12 Transitional provisions [s 101] (2) For subsection (1)— (a) copies of the contract information statements— (i) must be kept at the head office and any regional office of the department; and (ii) must be kept at the head office and any regional office of the commission; and (iii) may be kept at any other place the chief executive considers appropriate; and (b) the copies of the statements kept at a place must be available for supply during office hours on business days for the place. 101 Regulation-making power The Governor in Council may make regulations under this Act. Part 12 Transitional provisions 102 Application of Act to contracts This Act only applies to domestic building contracts entered into after the commencement of this section. 103 Application of QBCC Act to contracts The QBCC Act, as in force immediately before the commencement of this section, continues to apply to domestic building contracts entered into before the commencement. Current as at 1 December 2013 Page 69

Domestic Building Contracts Act 2000 Schedule 2 Schedule 2 Dictionary section 5 additional element , for a mixed-purpose contract, means the matter for which the building contractor is entitled to be paid under the contract, excluding— (a) the carrying out of domestic building work; and (b) the managing of the carrying out of domestic building work. amount referable to the contracted services , for a mixed-purpose contract, see section 19. appropriate contract information statement , for a regulated contract, means— (a) if there is only 1 contract information statement—the statement; or (b) if there is more than 1 contract information statement—the contract information statement that relates to the class of regulated contracts in which the particular contract is included. appropriate variation document means a variation document complying with the formal requirements for a variation document. Editor’s note — Section 80 (General contents of variation document) deals with the formal requirements for a variation document. architect means an architect under the Architects Act 2002 . associated third party amount , for a domestic building contract, see section 10. base stage means— (a) for a building with a timber floor with base brickwork—the stage when— Page 70 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Schedule 2 (i) the concrete footings for the building’s floor are poured; and (ii) the building’s base brickwork is built to floor level; and (iii) the bearers and joists for the building are installed; or (b) for a building with a timber floor without base brickwork—the stage when— (i) the building’s stumps, piers or columns are finished; and (ii) the bearers and joists for the building are installed; or (c) for a building with a suspended concrete slab floor—the stage when— (i) the building’s concrete footings are poured; and (ii) the formwork and reinforcing for the suspended slab are installed; or (d) for a building with a concrete floor, other than a suspended concrete slab floor—the stage when the building’s floor is finished. brickwork includes blockwork. building includes— (a) a structure, including a temporary building and other temporary structure; and (b) a part of a structure. Building Code of Australia means the Building Code of Australia within the meaning of the Building Act 1975. building contractor means a person who— (a) carries out domestic building work; or (b) manages the carrying out of domestic building work; or (c) has carried out, or managed the carrying out of, domestic building work; or Current as at 1 December 2013 Page 71

Domestic Building Contracts Act 2000 Schedule 2 Page 72 (d) intends to carry out, or to manage the carrying out of, domestic building work. building owner means the person for whom domestic building work has been, is being, or is to be, carried out. building site means a place where domestic building work has been, is being, or is to be, carried out. commission means the Queensland Building and Construction Commission established under the QBCC Act, section 5. contracted services , for a domestic building contract, means the thing done, being done or to be done by the building contractor under the contract in relation to domestic building work, being either— (a) the carrying out of the work; or (b) the managing of the carrying out of the work. contract estimated amount , for a regulated contract that is a cost plus contract, means the amount stated in the contract as the building contractor’s fair and reasonable estimate of the total amount the building contractor is likely to receive under the contract. contract information statement means a statement approved by the commission under section 99. contractor’s licence means a contractor’s licence under the QBCC Act. contract price , for a domestic building contract, see section 6. cost escalation clause see section 11. cost plus contract means a domestic building contract under which the amount the building contractor is to receive under the contract can not be calculated when the contract is entered into, even if prime cost items and provisional sums are ignored. designated stages contract means a regulated contract that is— (a) a contract to build only to the enclosed stage; or Current as at 1 December 2013

Domestic Building Contracts Act 2000 Schedule 2 (b) a contract to build only to the fixing stage; or (c) a contract to build all stages, including the base, frame, enclosed and fixing stages. detached dwelling means— (a) a single detached dwelling; or (b) a duplex. development approval means a development approval under the Sustainable Planning Act 2009 . display home means a home (including a building suitable for use as a home, regardless of whether it is being used as a home) available for inspection to encourage persons to enter into contracts for the construction of similar homes. domestic building contract see section 7. domestic building work see section 8. draftsperson means a person who holds a contractor’s licence authorising the person to prepare plans and specifications for domestic building work. effective completion date , for a regulated contract, see section 18. effective completion period , for a regulated contract, see section 18. enclosed stage , for a building, means the stage when— (a) the external wall cladding is fixed; and (b) the roof covering is fixed, but without— (i) soffit linings necessarily having been fixed; or (ii) for a tile roof—pointing necessarily having been done; or (iii) for a metal roof—scribing and final screwing off necessarily having been done; and (c) the structural flooring is laid; and (d) the external doors are fixed (even if only temporarily), but, if a lockable door separating the garage from the Current as at 1 December 2013 Page 73

Domestic Building Contracts Act 2000 Schedule 2 rest of the building has been fixed, without the garage doors necessarily having been fixed; and (e) the external windows are fixed (even if only temporarily). engineer means a registered professional engineer under the Professional Engineers Act 2002 . excluded building work means any of the following work— (a) work relating to any of the following buildings— (i) a farm building, or proposed farm building, that is not a home; (ii) a building intended to be used only for business purposes; (iii) a building intended to be used only to accommodate animals; (b) design work carried out by an architect, engineer or draftsperson; (c) the preparation of plans, specifications or bills of quantity for the carrying out of domestic building work; (d) work involved in obtaining foundations data about a building site; (e) transporting a building; (f) work declared under a regulation to be excluded building work if there are reasonable grounds for considering the work to be excluded building work. executive officer , of a corporation, means a person who— (a) is a director or the secretary of the corporation; or (b) is concerned with, or takes part in, the corporation’s management, whether or not— (i) the person is a director or the secretary of the corporation; or (ii) the person’s position is given the name of executive officer. Page 74 Current as at 1 December 2013

Domestic Building Contracts Act 2000 Schedule 2 farm building means a building that— (a) is constructed on land used entirely or mainly for agricultural or pastoral purposes; and (b) is used, or intended to be used, for agricultural or pastoral purposes. fixed price contract means a domestic building contract that is not a cost plus contract. fixing stage means the stage when all internal lining, architraves, cornice, skirting, doors to rooms, baths, shower trays, wet area tiling, built-in shelves, built-in cabinets and built-in cupboards of a building are fitted and fixed in position. foundations data see section 12. frame stage means the stage when a building’s frame is finished. home see section 13. manage , the carrying out of domestic building work, includes provide supervisory, advisory or administrative services for carrying out the work. mixed-purpose contract means a contract entered into between a building contractor and building owner that entitles the building contractor to be paid both for carrying out, or managing the carrying out of, domestic building work and for 1 or more of the following— (a) carrying out work that is not domestic building work; (b) managing the carrying out of work that is not domestic building work; (c) another matter. non-working days , for carrying out domestic building work, means— (a) weekend days; or (b) public holidays; or (c) rostered days off; or Current as at 1 December 2013 Page 75

Domestic Building Contracts Act 2000 Schedule 2 Page 76 (d) other days not generally available for carrying out the work. payment section means section 64, 65, 66 or 67. prime cost adjustment , for a prime cost item in a regulated contract, means an adjustment for the item to reflect a difference in the following— (a) the amount payable under the contract for the item; (b) the amount provided for in the allowance stated in the contract for the item. prime cost item , for a domestic building contract, means an item, including, for example, a fixture or fitting— (a) that has not been selected, or the price of which is not known, when the contract is entered into; and (b) for the cost of supply and delivery of which a reasonable allowance is, or is to be, made in the contract by the building contractor. progress payment , for a domestic building contract, means a payment of an amount that is a part of the contract price for the contract, but does not include a payment of an amount that is, or is in the nature of, a deposit under the contract. provisional sum , for a domestic building contract, see section 14. provisional sum adjustment , for a provisional sum in a regulated contract, means an adjustment for the provisional sum to reflect a difference in the following— (a) the amount payable under the contract for providing the contracted services to which the sum relates; (b) the provisional sum. QBCC Act means the Queensland Building and Construction Commission Act 1991 . reasonably believes means believes on grounds that are reasonable in all the circumstances. regulated amount means— Current as at 1 December 2013