ALERT DIGEST 13 of 1995

1.1

This Bill was introduced into the Legislative Assembly on 11 October 1995 by the Honourable Jan Wade MP with the Honourable Phil Gude MP.

1.2

The Bill amends the House Contracts Guarantee Act 1987 and the Building Act 1993. The main purposes of the Bill are:-

• to regulate contracts for the carrying out of domestic building work; and
• to establish a Domestic Building Tribunal to resolve domestic building disputes and for other purposes; and
• to require builders carrying out domestic building work to be covered by insurance in relation to that work; and
• to amend the House Contracts Guarantee Act 1987 and in particular, to phase out the making of claims under that Act.

Clause 3 sets out various definitions. Clause 5 sets out the building work to which the Act applies. Clause 8 sets out the implied warranties which relate to all domestic buildings. Clause 11 limits the deposit to which a builder is entitled to demand as a deposit. Clause 12 provides that contracts for more than one sort of work must specify the domestic building work. Clause 13 sets out restrictions on cost plus contracts. Clause 14 prohibits compulsory arbitration clauses. The Committee notes the comments in the Second Reading Speech:-

"It is the government's belief that, far from being a quick and cost-effective means of resolving building disputes, as was intended, arbitration has often become overly legalistic, time consuming and expensive. Arbitration will be permissible only where both parties to a contract have explicitly evidenced a desire to follow this sort of dispute resolution. Arbitration will not be able to appear as a standard term in general domestic building contracts."

Clause 15 sets out the restrictions concerning contracts with cost escalation clauses. Clauses 17 to 19 govern access and restrictions in relation to builders and building sites. Pursuant to clause 22 details of prime cost items and provisional sums must be set out in writing in domestic building contracts. Clause 24 allows the builder to exclude certain items from the contract price if they are stipulated. Relevant reports must be supplied to the building owner under clause 26. Fixtures and fittings are to be included in the contract price pursuant to clause 28.

1.4 _¯ Part 3 - Provisions that only apply to major domestic building contracts

Clause 30 requires the builder to obtain relevant information regarding the foundations of a major domestic building. Clause 31 sets out the general requirements of a building contract. The builder is to make allowances for delays in time estimates. Clause 34 allows a 5 day cooling off period in respect of a major building contract. The building contract must specify the cooling off period. Clause 37 governs the variation of plans or specifications by the builder. Clause 38 governs the variation of plans or specifications by building owners. Clause 39 sets out the effect of a variation on the contract price. Clause 40 sets out the limits in respect of progress payments. Clause 41 provides for the termination of a contract if the time or the cost blows out unreasonably. Clause 42 governs the time when work is considered to be completed. Clause 43 sets out the requirements in relation to display homes.

1.5 _¯ Part 4 - Inspectors

Clause 45 governs the appointment of inspectors by the Commission. Clause 46 sets out when an inspector may enter a building site. An inspector may conduct tests and must report the results of any tests to the parties to the dispute. Recommendations must be made where the inspector believes that the builder is not complying with the plans and specifications set out in the contract. An inspector's report may be used as evidence before the Tribunal.

1.6 _¯ Part 5 - The Domestic Building Tribunal

Clause 51 establishes the Domestic Building Tribunal. Its function is to hear and determine domestic building disputes. A person cannot be appointed as the Chairperson of the Tribunal unless he or she is a judge of the County Court (see Schedule 1). Clause 53, without limiting the powers, sets out the various orders the Tribunal may make. Clause 54 defines a "domestic building dispute". Clause 57 provides that matters which are mainly the result of a domestic building dispute which are initiated in the Supreme, County or Magistrates' Court must be transferred to the Tribunal if requested by a party, the Court has not heard any oral evidence and the Tribunal has power under the Subdivision to hear the matter. Clause 59 enables the Tribunal to hear a dispute regardless of related criminal proceedings. Clause 60 gives the Tribunal the power to review and change a decision of an insurer. However sub-section (1) lists the various matters over which the Tribunal has no jurisdiction. Clause 61 sets out who may ask the Tribunal to review an insurer's decision. Clause 64 provides that the Tribunal may order building work to stop. Clause 65 set out who may request the Tribunal to make such an order. Pursuant to clause 66 a person affected may apply for review of that order. A person may apply to the Tribunal for an exemption from the operation of section 137B of the Building Act 1993 (see clause 142 later) under clause 68.

1.7 _¯ The commencement of proceedings - Mediations - Hearings

Clauses 69 to 74 govern the commencement of proceedings in the Tribunal. The Registrar may refer a matter to mediation. Hearings before the Tribunal must take place in public. However, if the Tribunal is satisfied that it is desirable to do so because of the existence of special circumstances, it may direct that a proceeding be conducted in private. Clauses 77 to 86 govern the proceedings of the Tribunal. Clause 83 provides that in any proceeding before the Tribunal a party to the proceeding may appear personally or by a professional advocate. However, a party may be represented by a professional advocate only if another party to the proceeding agrees to such representation.

The Committee has written to the Minister requesting clarification of the operation of the Tribunal's discretion and that if required, further elaboration be given during the Second Reading Debate.

Clause 90 provides that the Tribunal may make orders for security for payment orders. It may also dismiss vexatious or unfairly conducted proceedings and award costs as it thinks appropriate. The Tribunal may retain experts and enter and inspect property. The Tribunal may dismiss a proceeding if it is of the opinion that having regard to the matters, the size and complexity of the claim would be more appropriately dealt with by a court (Clause 97). Clause 98 provides that the Tribunal may refer questions of law to the Trial Division of the Supreme Court for its opinion. The Supreme Court must give its opinion on the question referred to it. Whilst a matter is before the Supreme Court, the Tribunal cannot make a decision in relation to that matter and it cannot make a decision which is inconsistent with the opinion of the Supreme Court. Pursuant to clause 102, the Tribunal may refuse to hear a matter if hearing fees required by the regulations are not paid. Clauses 103 to 106 relate to settlement offers. Clause 107 provides that a party may apply for a review of a Tribunal's decision if it appears that a clerical mistake or a factual error may have influenced the outcome of the proceedings. The Tribunal may review any determination made by it in relation to a building dispute if new evidence is available under clause 108. Clause 110 allows a party to dispute to appeal to the Court of Appeal on a question of law from a determination of the Tribunal in that proceeding.

Clause 113 provides that the Chairperson may delegate any administrative power, function or duty of the Chairperson to the Registrar. However, it also goes on to say that the Chairperson may permit the Registrar to sub-delegate any delegated power, function or duty. The Committee notes that the provision appears to attempt to limit powers which may be delegated. However, the Registrar may sub-delegate any delegated power, function or duty. The Committee is of the view that the classes of persons to whom the powers are to be delegated, (classes of officers of the Tribunal) should be specified.

Clause 116 provides that from time to time the Registrar may by instrument delegate to a Deputy Registrar any of his or her powers or functions. However the Registrar may not delegate the power of delegation conferred nor any power or function unless permitted by the instrument delegating the power or function.

Clause 124 establishes the Domestic Builders Fund. Clauses 125 to 128 relates to the service and withdrawal of infringement notices. Clause 135 is the regulation making provision.

1.8 _¯ Part 7 - Amendment of the Building Act 1993

Clause 137 amends section 24 in relation to building permits. Clause 139 substitutes a new section 135 into the Building Act 1993 which enables the Minister by order in the Government Gazette to specify that certain categories or classes of building practitioners to be covered by insurance. Clause 140 makes it an offence to work as a building practitioner without required insurance. Clause 142 inserts new sections 137A,B,C,D and E which set out various insurance requirements. New section 137B makes it an offence for an owner-builder to sell a building without the relevant report or insurance. New section 137C sets out the warranties for the purposes of homes under new section 137B. New section 137D sets out the insurance requirements for the purposes of homes under section 137B. New section 137E sets out insurance requirements for homes sold before completion. Clause 143 amends section 146(2) of the Act. It provides that unless the Building Appeals Board otherwise directs, an appeal under section 138 of that Act (appeals in respect of building and occupancy permits), section 139 of that Act (appeals in respect of temporary occupation of buildings) or section 174A of that Act (appeals against suspension of registration where a builder has failed to comply with an insurer's direction) does not stay the operation of the decision under appeal.

Clause 145 requires the builder to give written proof to the Board that he or she is covered by the required insurance. Clause 146 inserts new section 174A which provides for the suspension of registration where there is a failure to comply with the insurer's direction. Clause 148 amends section 178 to include referrals by the Domestic Building Tribunal and insurers as matters into which the Building Practitioners Board may conduct an inquiry. Clause 149 amends section 179 to include further matters as matters prompting disciplinary action resulting from an inquiry conducted by the Building Practitioners Board. Clause 150 inserts a new section 180A which relates to privilege which attaches to complaints made against builders. Clause 151 requires the Building Practitioners Board to give appropriate notice in respect of decisions made to the Domestic Building Tribunal. Clause 152 enables the Minister to issue guidelines in respect of fees which may be charged. Clause 153 creates a new part of the Building Administration Fund. Clause 154 inserts new section 241A which sets out additional penalties for unregistered builders carrying out domestic work.

1.9 _¯ Part 8 - Amendment of House Contracts Guarantee Act 1987

Clause 158 amends the application of the Act. Clause 159 amends section 13 so that complaints and claims will be dealt with by the Domestic Building Tribunal. Clause 160 amends section 16 to provide that appeals from decisions of the approved guarantor must be made to the Domestic Building Tribunal within 28 days of the decision being made. Clause 162 inserts a new section 17A which sets out the procedure in respect of payments which may be made by the guarantor. Clause 163 inserts a new section 21A to provide that any reference to requiring arbitration in a domestic building work contract is to be interpreted as a requirement to refer the matter to the Domestic Building Tribunal for resolution. Clause 164 repeals section 22 in relation to the appeals committee of the approved guarantor. The appeals committee is to be replaced by the Domestic Building Tribunal. The total number of directors of HGFL is changed from 7 to a minimum of 5 and a maximum of 7 and by increasing the number of directors to be appointed by the Minister from 1 to 2. The Minister may also appoint up to a further 2 directors on the recommendation of the chairman of directors. It also inserts a provision in relation to the memorandum of association of HGFL. Clause 165 inserts new section 22A which provides for the administration by the approved guarantor. Clause 167 inserts a new section 32A which provides that a person cannot sign away the right to take advantage of a guarantee. Clauses 168 and 169 are appeal provisions and contain minor amendments.

2.1

This Bill was introduced into the Legislative Assembly on 25 October 1995 by the Honourable Geoff Coleman MP with the Honourable Phil Gude MP.

2.2

The purposes of the Bill are:-

• to amend the Carlton (Recreation Ground) Land Act 1966 to extend by stratum the area over which leases may be granted to facilitate the construction of a cantilevered grandstand; and
• to extend the purposes for which a lease may be granted.

Clause 4 amends section 3 so that leases may also be granted for the purposes of cultural or educational activities. Clause 6 inserts new sections 5 and 6 to provide for the extension of the lease area to include the space above the surface of the land to allow for the construction of a cantilevered grandstand. A new Schedule 2 is inserted into the Act shows the area of land to which the new section 5 applies.

The Committee makes no further comment.

3.1

This Bill was introduced into the Legislative Assembly on 11 October 1995 by the Honourable Geoff Coleman MP with the Honourable Phil Gude MP.

3.2

The purposes of the Bill are:-

• to revoke the reservations and Crown grants in respect of various parcels of land and to provide for the re-reservation of certain land; and
• to amend the Kew and Heidelberg Lands Act 1933;
• to amend the Ballarat (Sovereign Hill) Land Act 1970 and repeal the Ballarat (Sovereign Hill) Land Act 1973; and
• to make provision for related matters.

3.3 _¯ Part 2 - Revocation of reservations - Part 3 - Amendment of the Kew and Heidelberg Lands Act 1933

Clauses 3 to 11 revoke various reservations of land. Clause 13 re-reserves specified land at Fairfield as a site for health and social purposes. Clause 16 substitutes new sections 6 to 6F which relate to the constitution and membership of the trust. The 7 trustees are appointed by the Minister. Fees and allowances paid to the trustees are fixed by the Minister. Similarly, the Secretary is appointed by the Minister and receives remuneration fixed by the Minister. The Committee is concerned that there should be some transparency in respect of fees and allowances paid to the trustees and the Secretary. The Committee is of the view that any remuneration should be published either in the Government Gazette or in an appropriate annual report. The Committee has written to the Minister.

Clause 18 amends the power of the Trust to enable it to provide specialist advice and services on the management and maintenance of public parks, gardens and recreational areas. Clause 20 specifies which land is permanently reserved for the purposes of a public park and recreation.

3.4 _¯ Part 4 - Ballarat (Sovereign Hill) Land Acts

Clause 23 revokes specified permanent reservations of land. It also surrenders certain land to the Crown and makes a grant of land to the Association. It re-reserves land in relation to the museum site. It provides for the continuation of existing leases. Clause 24 makes consequential amendments. Clause 25 substitutes a new section 7 to enable the Registrar-General and the Registrar of Titles to make necessary amendments. Clause 26 is a repeal provision. Schedule 1 sets out the various allotments of land in respect of which reservations are revoked. Schedules 3 to 6 set out various plans.

The Committee notes the absence of the Section 85 provisions which usually accompany these changes in the use of land. The Committee welcomes the change in drafting practice. The Committee refers to its Discussion Paper No.1 on Section 85 of the Constitution Act 1975.

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