New South Wales: Home Building Act 1989 (NSW)

Home Building Act 1989 No 147 An Act to make provision concerning the residential building industry and certain specialist work; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Home Building Act 1989. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Interpretation Schedule 1 provides for the interpretation of expressions used in this Act. 3AA (Repealed) 3A Application of provisions to developers (1) For the purposes of this Act, an individual, a partnership or a corporation on whose behalf residential building work is done in the circumstances set out in subsection (2) is a developer in relation to that residential building work. (1A) Residential building work done on land in the circumstances set out in subsection (2) is, for the purpose of determining who is a developer in relation to the work, deemed to have been done on behalf of the owner of the land (in addition to any person on whose behalf the work was actually done). Note— This makes the owner of the land a developer even if the work is actually done on behalf of another person (for example, on behalf of a party to a joint venture agreement with the owner for the development of the land). The other person on whose behalf the work is actually done is also a developer in relation to the work. (2) The circumstances are— (a) the residential building work is done in connection with an existing or proposed dwelling in a building or residential development where 4 or more of the existing or proposed dwellings are or will be owned by the individual, partnership or corporation, or (b) the residential building work is done in connection with an existing or proposed retirement village or accommodation specially designed for the disabled where all of the residential units are or will be owned by the individual, partnership or corporation. (3) A company that owns a building under a company title scheme is not a developer for the purposes of this Act. 3B Date of completion of residential building work (1A) This section does not apply to residential building work to which section 3C applies. Note— Section 3C provides for the date of completion of new buildings in strata schemes. (1) The completion of residential building work occurs on the date that the work is complete within the meaning of the contract under which the work was done. (2) If the contract does not provide for when work is complete (or there is no contract), the completion of residential building work occurs on practical completion of the work, which is when the work is completed except for any omissions or defects that do not prevent the work from being reasonably capable of being used for its intended purpose. (3) It is to be presumed (unless an earlier date for practical completion can be established) that practical completion of residential building work occurred on the earliest of whichever of the following dates can be established for the work— (a) the date on which the contractor handed over possession of the work to the owner, (b) the date on which the contractor last attended the site to carry out work (other than work to remedy any defect that does not affect practical completion), (c) the date of issue of an occupation certificate under the Environmental Planning and Assessment Act 1979 that authorises commencement of the use or occupation of the work, (d) (in the case of owner-builder work) the date that is 18 months after the issue of the owner-builder permit for the work. (4) If residential building work comprises the construction of 2 or more buildings each of which is reasonably capable of being used and occupied separately, practical completion of the individual buildings can occur at different times (so that practical completion of any one building does not require practical completion of all the buildings). (5) This section applies for the purposes of determining when completion of residential building work occurs for the purposes of any provision of this Act, the regulations or a contract of insurance under Part 6. 3C Date of completion of new buildings in strata schemes (1) This section applies to residential building work comprising the construction of a new building in a strata scheme (within the meaning of the Strata Schemes Management Act 2015) where the issue of an occupation certificate is required to authorise commencement of the use or occupation of the building. Note— Section 3B provides for the date of completion of other residential building work. (2) The completion of residential building work to which this section applies occurs on— (a) the date of issue of an occupation certificate that authorises the occupation and use of the whole of the building, unless paragraph (b) applies, or (b) the occurrence of some other event that is prescribed by the regulations as constituting completion of the work. (3) If a contract to do residential building work (the primary contract) comprises the construction of 2 or more separate buildings, the date of completion of that work is to be determined as if there were a separate contract for each separate building (with each contract on the same terms as the primary contract) so that the work for each building will have a separate completion date. For the purposes of this section, a building is separate if it is reasonably capable of being used and occupied separately from any other building. Note— Separate buildings can still have the same completion date if they are completed at the same time. (4) This section applies for the purpose of determining when completion of residential building work occurs for the purposes of any provision of this Act, the regulations or a contract of insurance under Part 6. (5) In this section— building means any structure that, as a new building, requires the issue of an occupation certificate to authorise its use and occupation. occupation certificate means an occupation certificate under the Environmental Planning and Assessment Act 1979. Note— A swimming pool, tennis court or detached garage can be a building for the purposes of this section if an occupation certificate is required to authorise its use and occupation. If a structure in a strata scheme does not require an occupation certificate, section 3B will apply to it instead of section 3C. 3D Application of provisions to specialist work In its application to specialist work, this Act is not limited to specialist work that is residential building work and extends to specialist work that is not residential building work (for example, commercial and industrial specialist work). Part 2 Regulation of residential building work and specialist work Division 1 Contracting for work 4 Unlicensed contracting (1) A person must not contract to do— (a) any residential building work, or (b) any specialist work, except as or on behalf of an individual, partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (2) The holder of a contractor licence who has contracted to do any residential building work must not contract with another person for the other person to do the work (or any part of the work) for the holder unless the other person is the holder of a contractor licence to do work of that kind. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (3) The holder of a contractor licence must not contract with another person for the other person to do any work (or part of any work) for the holder for which insurance is required under this Act unless the other person is the holder of a contractor licence to do work of that kind. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (4) A developer in relation to residential building work must not contract with another person for the other person to do that residential building work on behalf of the developer unless the other person is the holder of a contractor licence authorising the other person to do work of that kind. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (5) A person is not guilty of an offence against subsection (2), (3) or (4) if the person establishes that the person did all that could reasonably be required to prevent the contravention of the subsection. (6) An individual who is convicted of a second or subsequent offence under a provision of this section is liable to a penalty not exceeding 500 penalty units or imprisonment for a term not exceeding 12 months, or both. 5 Seeking work by or for unlicensed person (1) An individual, a member of a partnership, an officer of a corporation or a corporation must not represent that the individual, partnership or corporation is prepared to do— (a) any residential building work, or (b) any specialist work, if the individual, partnership or corporation is not the holder of a contractor licence authorising its holder to contract to do that work. (2) A person must not represent that an individual, partnership or corporation is prepared to do— (a) any residential building work, or (b) any specialist work, if the person knows that the individual, partnership or corporation is not the holder of a contractor licence authorising its holder to contract to do that work. (3) An individual who is convicted of a second or subsequent offence under this section is liable to a penalty not exceeding 500 penalty units or imprisonment for a term not exceeding 12 months, or both. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. 6 Application of requirements for contracts (1) Sections 7–7E apply to a contract under which the holder of a contractor licence undertakes— (a) to do, in person, or by others, any residential building work or any specialist work, or (b) to vary any such undertaking to do residential building work or any specialist work or the way in which any such work is to be done. (2) However, sections 7, 7AAA, 7AA, 7B and 7BA do not apply to a contract to do residential building work or specialist work in such circumstances that— (a) if the work were not to be done promptly, there is likely to be a hazard to the health or safety of any person or to the public or to be damage to property, and (b) the work could not be done promptly if the requirements of sections 7, 7AAA, 7AA, 7B and 7BA were to be complied with before commencing the work. (3) Section 7(2)(f) and (5) do not apply to a contract referred to in subsection (1)(b). 7 Form of contracts (other than small jobs) Note— Section 7AAA applies to contracts for small jobs. (1A) This section applies to a contract only if the contract price exceeds the prescribed amount or (if the contract price is not known) the reasonable market cost of the labour and materials involved exceeds the prescribed amount. The prescribed amount is the amount prescribed by the regulations for the purposes of this section and is inclusive of GST. (1) A contract must be in writing and be dated and signed by or on behalf of each of the parties to it. (2) A contract must contain— (a) the names of the parties, including the name of the holder of the contractor licence shown on the contractor licence, and (b) the number of the contractor licence, and (c) a sufficient description of the work to which the contract relates, and (d) any plans and specifications for the work, and (e) the contract price if known, and (f) any statutory warranties applicable to the work, and (f1) the cost of cover under Part 6 or 6B (if insurance is required under Part 6), and (g) in the case of a contract to do residential building work—a conspicuous statement setting out the cooling-off period that applies to the contract because of section 7BA, and (h) in the case of a contract to do residential building work (other than a construction contract to which the Building and Construction Industry Security of Payment Act 1999 applies)—details of any progress payments payable under the contract, and (i) in the case of a contract to do residential building work—a statement that the contract may be terminated in the circumstances provided by the general law and that this does not prevent the parties agreeing to additional circumstances in which the contract may be terminated, and (j) any other matter prescribed by the regulations for inclusion in the contract. (3) The contract must comply with any requirements of the regulations. (4) If the contract price is known, it must be stated in a prominent position on the first page of the contract. (5) If the contract price is not known or may be varied under the contract, the contract must contain a warning to that effect and an explanation of the effect of the provision allowing variation of the price. The warning and explanation must be placed next to the price if the price is known. (6) A contract must not include in the contract the name of any person other than the holder of a contractor licence as, or so it may reasonably be mistaken to be, the holder's name. (7) This section does not prevent the holder of a contractor licence with a business name registered under the Business Names Registration Act 2011 of the Commonwealth from also referring in such a contract to the business name. (8) This section does not apply to— (a) a contract that is made between parties who each hold a contractor licence and is for work that each party's contractor licence authorises the party to contract to do, or (b) a contract to do specialist work that is not also residential building work. Note— The exception in paragraph (a) applies to a subcontracting arrangement between licensees, and to a contract between licensees for work to be done on premises that one of the licensees owns. 7AAA Form of contracts (small jobs) (1) This section applies to a contract only if the contract is not one to which section 7 applies and the contract price exceeds the prescribed amount or (if the contract price is not known) the reasonable market cost of the labour and materials involved exceeds the prescribed amount. The prescribed amount is the amount prescribed by the regulations for the purposes of this section and is inclusive of GST. (2) A contract must be in writing and be dated and signed by or on behalf of each of the parties to it. (3) A contract must contain— (a) the names of the parties, including the name of the holder of the contractor licence shown on the contractor licence, and (b) the number of the contractor licence, and (c) a description of the work to which the contract relates, and (d) any plans and specifications for the work, and (e) the contract price if known. (4) The contract must comply with any requirements prescribed by the regulations for the purposes of a contract to which this section applies. (5) This section does not apply to— (a) a contract that is made between parties who each hold a contractor licence and is for work that each party's contractor licence authorises the party to contract to do, or (b) a contract to do specialist work that is not also residential building work. Note— The exception in paragraph (a) applies to a subcontracting arrangement between licensees, and to a contract between licensees for work to be done on premises that one of the licensees owns. 7AA Consumer information (1A) This section applies to a contract to which section 7 or 7AAA applies, but does not apply to any of the following contracts— (a) a contract to do residential building work entered into between the holder of a contractor licence and a developer in relation to the work, (b) a contract of a class prescribed by the regulations. (1) A holder of a contractor licence must, before entering into a contract that the holder is authorised by this Act to enter, give to the other party to the contract information, in a form approved by the Secretary, that explains the operation of this Act and the procedure for the resolution of disputes under the contract and for the resolution of disputes relating to insurance. Maximum penalty—40 penalty units in the case of a corporation and 20 penalty units in any other case. (2) (Repealed) 7A Offence A person must not contract to do work under a contract unless the requirements of sections 7, 7AAA and 7E in relation to the contract are complied with. Maximum penalty—80 penalty units in the case of a corporation and 40 penalty units in any other case. 7B Copy of contract A holder of a contractor licence must, not later than 5 clear business days after entering into a contract, give the other party to the contract a signed copy of the contract in the form in which it was made. Maximum penalty—80 penalty units in the case of a corporation and 40 penalty units in any other case. 7BA Cooling-off period: person may rescind a contract for residential building work within 5 days without penalty (1A) This section applies to a contract only if the contract price exceeds the prescribed amount or (if the contract price is not known) the reasonable market cost of the labour and materials involved exceeds the prescribed amount. The prescribed amount is the amount prescribed by the regulations for the purposes of this section and is inclusive of GST. (1) A person who contracts with the holder of a contractor licence for residential building work to be done by the holder of the contractor licence may, by notice in writing, rescind the contract— (a) in the case of a person who has been given a copy of the signed contract—at any time before the expiration of 5 clear business days after the person is given a copy of the contract, or (b) in the case of a person who has not been given a copy of the signed contract within 5 days after the contract has been signed—at any time before the expiration of 5 clear business days after the person becomes aware that he or she is entitled to be given a copy of the signed contract. (2) The notice must state that the person rescinds the contract and must be given— (a) to the holder of the contractor licence personally, or (b) by leaving it at the address shown in the contract as the address of the holder of the contractor licence, or (c) by serving it on the holder of the contractor licence in accordance with any notice or service provision in the contract. (3) If a notice is given in accordance with this section— (a) the contract is taken to be rescinded from the time it was signed, but subject to the rights and obligations conferred by this section, and (b) the holder of the contractor licence may retain out of any money already paid to the holder the amount of any reasonable out-of-pocket expenses the holder incurred before the rescission, and (c) the holder of the contractor licence must refund all other money paid to the holder under the contract by (or on behalf of) the party who rescinded the contract at or since the time the contract was made, and (d) the party who rescinded the contract is not liable to the holder of the contractor licence in any way for rescinding the contract. (4) The cooling-off period may be shortened or avoided by a provision in the contract, but the provision does not take effect unless and until the other party to the contract gives the holder of the contractor licence (or the holder's Australian legal practitioner) a certificate that complies with subsection (5). (5) A certificate complies with this subsection if it— (a) is in writing, and (b) is signed by an Australian legal practitioner, other than— (i) an Australian legal practitioner acting for the holder of the contractor licence, or (ii) any other Australian legal practitioner employed in the legal practice of an Australian legal practitioner acting for the holder of the contractor licence, or (iii) any other Australian legal practitioner who is a member or employee of a firm in which an Australian legal practitioner acting for the holder of the contractor licence is a member or employee, and (c) indicates the purpose for which the certificate is given, and (d) contains a statement to the effect that the Australian legal practitioner explained to the other party to the contract the effect of the contract, the nature of the certificate and the effect of giving the certificate to the holder of the contractor licence. (6) A contract can be rescinded under this section even if work has been done under the contract at the time of rescission. (7) If a contract is rescinded under this section, the holder of the contractor licence is entitled to a reasonable price for the work carried out under the contract to the date the contract is rescinded. (8) This section does not apply to any of the following contracts— (a) a contract that is made between parties who each hold a contractor licence and is for work that each party's contractor licence authorises the party to contract to do, Note— The exception in paragraph (a) applies to a subcontracting arrangement between licensees, and to a contract between licensees for work to be done on premises that one of the licensees owns. (b) a contract entered into between the holder of a contractor licence and a developer in relation to the work, (c) a contract that is supplied and fully prepared by or on behalf of the person who contracts with the holder of the contractor licence and no part of which is supplied or prepared by or on behalf of the holder of the contractor licence, Note— The exception in paragraph (c) does not apply to a contract supplied and prepared by the person who contracts with the holder of a contractor licence if any terms or conditions are added to the contract by the holder of the contractor licence or his or her representative. (d) a contract of a class prescribed by the regulations. 7BB Person may rescind a residential building work contract if cooling-off warning not given (1) This section applies to a contract for residential building work to which section 7BA applies. (2) If a contract does not contain a statement relating to the cooling-off period and a person's rights under section 7BA (as required by section 7(2)(g)), a person (other than the holder of a contractor licence) may, by notice in writing, rescind the contract within 7 days of becoming aware that the contract should have contained such a notice. (3) The notice must state that the person rescinds the contract and must be given— (a) to the holder of the contractor licence personally, or (b) by leaving it at the address shown in the contract as the address of the holder of the contractor licence, or (c) by serving it on the holder of the contractor licence in accordance with any notice or service provision in the contract. (4) The notice must be given in the form approved by the Secretary, if any. (5) If a notice is given in accordance with this section the contract is taken to be rescinded from the time it was signed, but subject to the rights and obligations conferred by this section. (6) A contract can be rescinded under this section even if work has been done under the contract at the time of rescission. (7) If a contract is rescinded under this section, the holder of the contractor licence is entitled to a reasonable price for the work carried out under the contract to the date the contract is rescinded. (8) However, a holder of a contractor licence may not recover under subsection (7) more than the holder would have been entitled to recover under the contract. 7C Arbitration clause prohibited A provision in a contract or other agreement that requires a dispute under the contract to be referred to arbitration is void. 7D Interests in land under contract (1) A contract does not give the holder of a contractor licence or any other person a legal or equitable estate or interest in any land, and a provision in a contract or other agreement is void to the extent that it purports to create such an estate or interest. (2) Accordingly, the holder of a contractor licence or any other person may not lodge a caveat under the Real Property Act 1900 in respect of an estate or interest prohibited by subsection (1). (3) However, subsection (1) does not apply to a provision in a contract that creates a charge over land if— (a) the land the subject of the charge is land on which the contract work is, or is to be, carried out, and (b) the charge is in favour of the holder of a contractor licence who is a party to the contract, and (c) the charge is created to secure the payment to the holder of the contractor licence by another party to the contract of money due under the contract, but only if a court or tribunal has made an order or judgment that such payment be made, and (d) in the case of a charge over land under the Real Property Act 1900—the party to the contract against whom the judgment or order is made is the registered proprietor of the land. (4) A charge referred to in subsection (3) over land under the Real Property Act 1900 ceases to operate if the party to the contract against whom the judgment or order is made ceases to be the registered proprietor of the land so charged. 7E Terms of contracts (1) A contract must include (and is taken to include) each of the terms set out in Part 1 of Schedule 2. A contract that contains a term that is inconsistent with a term set out in Part 1 of Schedule 2 is unenforceable to the extent of the inconsistency. (2) The regulations may make provision for or with respect to— (a) terms or other matter that must be included in a contract or a class of contracts, or (b) terms or other matter that must not be included in a contract or a class of contracts. (3) If the regulations require a contract or class of contracts to contain a specified term (a prescribed term), a contract of the kind concerned is taken to include the term. A contract that contains a term that is inconsistent with a prescribed term is unenforceable to the extent of the inconsistency. (4) If the regulations provide that any term or other matter must not be included in a contract or a class of contracts, any contract that contains that term or other matter is unenforceable to the extent that it includes or applies to that term or other matter. (5) Any regulation made under this section does not apply to a contract in force at the time that the regulation commences. (6) This section does not limit section 7(3). 8 Maximum deposit for residential building work (1) The maximum amount of a deposit for residential building work is 10% of the contract price. A deposit for residential building work is a payment on account before work is commenced under a contract to do residential building work. (2) A person must not— (a) demand or receive payment of a deposit for residential building work if the amount of the payment exceeds the maximum imposed by this section, or (b) enter into a contract under which the person is entitled to demand or receive payment of a deposit for residential building work if the amount of the payment exceeds the maximum imposed by this section. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (3) The regulations may make provision concerning how a contract price is to be determined for the purposes of this section. (4) This section does not apply to residential building work done under— (a) a contract that is made between parties who each hold a contractor licence and is for work that each party's contractor licence authorises the party to contract to do, or (b) a contract to do specialist work that is not also residential building work. Note— The exception in paragraph (a) applies to a subcontracting arrangement between licensees, and to a contract between licensees for work to be done on premises that one of the licensees owns. 8A Maximum progress payments (other than small jobs) (1) This section applies to a contract to do residential building work when the contract price exceeds the prescribed amount or (if the contract price is not known) the reasonable market cost of the labour and materials involved exceeds the prescribed amount. The prescribed amount is the amount prescribed by the regulations for the purposes of this section and is inclusive of GST. (2) A progress payment for residential building work under a contract to which this section applies is authorised only if it is one of the following kinds of authorised progress payments— (a) a progress payment of a specified amount or specified percentage of the contract price that is payable following completion of a specified stage of the work, with the work that comprises that stage described in clear and plain language, (b) a progress payment for labour and materials in respect of work already performed or costs already incurred (and which may include the addition of a margin), with provision for a claim for payment to be supported by such invoices, receipts or other documents as may be reasonably necessary to support the claim and with payment intervals fixed by the contract or on an "as invoiced" basis, (c) a progress payment authorised by the regulations. Note— Progress payments can extend to variations to the work to be done under the contract. (3) A contract can provide for more than one kind of authorised progress payment. (4) A person must not— (a) demand or receive payment of a progress payment under a contract to which this section applies unless the progress payment is authorised under this section, or (b) enter into a contract to which this section applies under which the person is entitled to demand or receive payment of a progress payment unless the progress payment is authorised under this section. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (5) This section does not apply to a progress payment for residential building work under a construction contract to which the Building and Construction Industry Security of Payment Act 1999 applies. (6) This section does not apply to— (a) a contract that is made between parties who each hold a contractor licence and is for work that each party's contractor licence authorises the party to contract to do, or (b) a contract to do specialist work that is not also residential building work. Note— The exception in paragraph (a) applies to a subcontracting arrangement between licensees, and to a contract between licensees for work to be done on premises that one of the licensees owns. 9 Exhibition homes (1) In this section, exhibition home means a dwelling made available for inspection to persons who are invited, expressly or impliedly, to enter into a contract for the construction of a similar dwelling. (2) A person who makes an exhibition home available for inspection or who advertises that an exhibition home is so available is guilty of an offence if, at any time it is available for inspection, there is not prominently displayed at the home— (a) a copy of the plans and specifications relating to its construction, and (b) if the person is aware that persons are to be invited to enter into building contracts for the construction of similar dwellings by use of a standard form of building contract, a copy of that form of contract. Maximum penalty—80 penalty units in the case of a corporation and 40 penalty units in any other case. (3) If— (a) a contract is entered into with the holder of a contractor licence for the construction of a dwelling that is similar to an exhibition home, and (b) the holder knows that it was entered into after the other party to the contract had inspected the home, and (c) the contract in any way identifies the dwelling to be built by reference to the home, the contract is to be taken to contain a provision that the dwelling will be constructed according to the same plans and specifications, standards of workmanship and quality of materials as the exhibition home, except to the extent (if any) that the contract and its accompanying plans and specifications provide for any departure from them. 10 Enforceability of contracts and other rights (1) A person who contracts to do any residential building work, or any specialist work, and who so contracts— (a) in contravention of section 4 (Unlicensed contracting), or (b) under a contract to which the requirements of section 7 apply that is not in writing or that does not have sufficient description of the work to which it relates (not being a contract entered into in the circumstances described in section 6(2)), or (c) in contravention of any other provision of this Act or the regulations that is prescribed for the purposes of this paragraph, is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, and the contract is unenforceable by the person who contracted to do the work. However, the person is liable for damages and subject to any other remedy in respect of a breach of the contract committed by the person. (2), (3) (Repealed) (4) This section does not affect the liability of the person for an offence against a provision of or made under this or any other Act. 11 Other rights not affected This Division does not affect any right or remedy that a person (other than the person who contracts to do the work) may have apart from this Act. Division 1A Additional requirements for certain contracts if certifier required 11A Application of Division (1) This Division applies to a contract under which the holder of a contractor licence undertakes— (a) to do, in person, or by others, any residential building work or any specialist work, or (b) to vary any such undertaking to do residential building work or any specialist work or the way in which any such work is to be done, but only if a registered certifier will be required with respect to some or all of the work. (2) Despite subsection (1), this Division does not apply to the following— (a) a contract to do residential building work entered into between the holder of a contractor licence and a developer with respect to the work, (b) a contract for which the contract price does not exceed the prescribed amount or (if the contract price is not known) the reasonable market cost of the labour and materials involved does not exceed the prescribed amount, (c) a contract of a class prescribed by the regulations. (3) The requirements of this Division apply in addition to any requirements of Division 1. (4) In this section— prescribed amount is the amount prescribed by the regulations for the purposes of section 7AAA and is inclusive of GST. 11B Consumer information—certifiers A holder of a contractor licence must, before entering into a contract, give to the other party to the contract information, in a form approved by the Secretary, that explains the role of a registered certifier. Maximum penalty—40 penalty units in the case of a corporation and 20 penalty units in any other case. 11C Undue influence relating to appointment of certifiers (1) A holder of a contractor licence must not unduly influence (or attempt to unduly influence) a person with whom the contractor enters a contract, in the appointment by that person of a registered certifier to carry out certification work with respect to work to be carried out under the contract. Maximum penalty—1,000 penalty units in the case of a corporation and 300 penalty units in any other case. (2) Without limiting subsection (1), a holder of a contractor licence is taken to have attempted to unduly influence a person in the appointment of a registered certifier if the holder of the contractor licence— (a) made it a requirement of entering the contract that a specified registered certifier or class of registered certifier was or was not be appointed, or (b) offered to change the contract price if a specified registered certifier or class of registered certifier would be or would not be appointed, or (c) refuses to carry out work under the contract if a specified registered certifier or class of registered certifier is or is not appointed. 11D Terms of contract A contract must include (and is taken to include) each of the terms set out in Part 1A of Schedule 2. A contract that contains a term that is inconsistent with a term set out in Part 1A of Schedule 2 is unenforceable to the extent of the inconsistency. 11E Provisions not to apply where health or safety or property at risk However, sections 11B and 11D do not apply to a contract to do residential building work or specialist work in circumstances that— (a) if the work were not to be done promptly, there is likely to be a hazard to the health or safety of any person or to the public or to be damage to property, and (b) the work could not be done promptly if the requirements of the particular section were to be complied with before commencing the work. Division 2 Restrictions on who may do certain work 12 Unlicensed work An individual must not do any residential building work, or specialist work, except— (a) as, or as a member of a partnership or an officer of a corporation that is, the holder of a contractor licence authorising its holder to contract to do that work, or (b) as the holder of an owner-builder permit authorising its holder to do that work, or (c) as an employee of the holder of such a contractor licence or permit. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. 13 Unqualified residential building work (1) An individual must not do any residential building work, except— (a) as the holder of an endorsed contractor licence, a supervisor or tradesperson certificate or an owner-builder permit, authorising its holder to do that work, or (b) under the supervision, and subject to the direction, of the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise that work. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (2) If the same facts establish an offence under this section and an offence under another provision of this Act or under any other Act or law, an individual is not liable to be convicted of both offences. 14 Unqualified electrical wiring work (1) An individual must not do any electrical wiring work (whether or not it is also residential building work), except— (a) as a qualified supervisor in respect of that work, or (b) as the holder of a tradesperson certificate authorising its holder to do that work under supervision, but only if the work is done under the supervision and in accordance with the directions, if any, of such a qualified supervisor. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (2) Despite subsection (1), an individual may do electrical wiring work even though the individual is not such a qualified supervisor or holder, but only if such a qualified supervisor— (a) is present at all times where the work is being done by the individual, and (b) is available to be consulted by, and to give directions relating to how the work is to be done to, the individual. (3) A qualified supervisor who is supervising any electrical wiring work being done by an individual as referred to in subsection (1)(b) must— (a) give directions that are adequate to enable the work to be done correctly by the individual performing it, and (b) personally ensure that the work is correctly done. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (4) A qualified supervisor who is supervising any electrical wiring work being done by an individual as referred to in subsection (2) must— (a) give directions that are adequate to enable the work to be done correctly by the individual performing it (which, unless the qualified supervisor considers it unnecessary, must include directions requiring the individual to advise in detail on progress with the work), and (b) be present when the work is being done and be available to be consulted by, and to give directions relating to how the work is to be done to, the individual, and (c) personally ensure that the work is correctly done. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (5) This section applies to an individual acting in the course of his or her employment by the Crown. (6) In this section, qualified supervisor in respect of electrical wiring work means the holder of an endorsed contractor licence, or a supervisor certificate, authorising its holder to do that work. 15 Unqualified refrigeration or air-conditioning work An individual must not do any work declared by the regulations to be refrigeration work or air-conditioning work (whether or not it is also residential building work), except— (a) as the holder of an endorsed contractor licence, or of a supervisor or tradesperson certificate, authorising its holder to do that work, or (b) under the immediate supervision of the holder of such an endorsed contractor licence or supervisor certificate. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. 15A Unqualified mechanical services and medical gas work (1) An individual must not do any mechanical services and medical gas work (whether or not it is also residential building work) except— (a) as a qualified supervisor in respect of that work, or (b) as the holder of a tradesperson certificate authorising its holder to do that work under supervision, but only if the work is done under the supervision and in accordance with the directions, if any, of a qualified supervisor. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (2) Despite subsection (1), an apprentice or trainee may do mechanical services and medical gas services work even though the apprentice or trainee is not a qualified supervisor or holder, but only if a qualified supervisor— (a) is present at all times where the work is being done by the apprentice or trainee, and (b) is available to be consulted by, and to give directions relating to how the work is to be done to, the apprentice or trainee. (3) A qualified supervisor who is supervising any mechanical services and medical gas work being done by an apprentice or trainee as referred to in subsection (1)(b) must— (a) give directions that are adequate to enable the work to be done correctly by the apprentice or trainee performing it, and (b) personally ensure that the work is correctly done. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (4) A qualified supervisor who is supervising any mechanical services and medical gas work being done by an apprentice or trainee as referred to in subsection (2) must— (a) give directions that are adequate to enable the work to be done correctly by the apprentice or trainee performing it (which, unless the qualified supervisor considers it unnecessary, must include directions requiring the apprentice or trainee to advise in detail on progress with the work), and (b) be present when the work is being done and be available to be consulted by, and to give directions relating to how the work is to be done to, the apprentice or trainee, and (c) personally ensure that the work is correctly done. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (5) Despite subsection (1), a person may do mechanical services and medical gas work that is also the following— (a) plumbing and drainage work within the meaning of the Plumbing and Drainage Act 2011, (b) work declared by the regulations to be refrigeration work or air-conditioning work, (c) roof plumbing work, (d) specialist work within the meaning of section 34 of the Design and Building Practitioners Act 2020 in relation to a medical gas installation, if the person is— (e) the holder of an endorsed contractor licence, or of a supervisor or tradesperson certificate, authorising its holder to do that work, or (f) under the immediate supervision of the holder of a contractor licence or supervisor certificate that is endorsed with respect to that work. (6) This section applies to an individual acting in the course of his or her employment by the Crown. (6A) This section does not apply to a person who is a registered medical practitioner or a registered nurse who is commissioning, testing, verifying or witnessing a medical gas installation in the course of carrying out the person's functions as a registered medical practitioner or a registered nurse. (7) In this section— apprentice has the same meaning as in the Apprenticeship and Traineeship Act 2001. qualified supervisor, in respect of a class of work, means the holder of an endorsed contractor licence, or a supervisor certificate, authorising its holder to do that work. trainee has the same meaning as in the Apprenticeship and Traineeship Act 2001. 15B Unqualified medical gasfitting work (1) An individual must not do any medical gasfitting work (whether or not it is also residential building work) except— (a) as a qualified supervisor in respect of that work, or (b) as the holder of a tradesperson certificate authorising its holder to do that work under supervision, but only if the work is done under the supervision and in accordance with the directions, if any, of a qualified supervisor. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (2) Despite subsection (1), an apprentice or trainee may do medical gasfitting work even though the apprentice or trainee is not a qualified supervisor or holder, but only if a qualified supervisor— (a) is present at all times where the work is being done by the apprentice or trainee, and (b) is available to be consulted by, and to give directions relating to how the work is to be done to, the apprentice or trainee. (3) A qualified supervisor who is supervising medical gasfitting work being done by an apprentice or trainee as referred to in subsection (1)(b) must— (a) give directions that are adequate to enable the work to be done correctly by the apprentice or trainee performing it, and (b) personally ensure that the work is correctly done. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (4) A qualified supervisor who is supervising medical gasfitting work being done by an apprentice or trainee as referred to in subsection (2) must— (a) give directions that are adequate to enable the work to be done correctly by the apprentice or trainee performing it (which, unless the qualified supervisor considers it unnecessary, must include directions requiring the apprentice or trainee to advise in detail on progress with the work), and (b) be present when the work is being done and be available to be consulted by, and to give directions relating to how the work is to be done to, the apprentice or trainee, and (c) personally ensure that the work is correctly done. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (5) Despite subsection (1), a person may do medical gasfitting work that is also mechanical services and medical gas work, if the person is— (a) the holder of an endorsed contractor licence, or of a supervisor or tradesperson certificate, authorising its holder to do that work, or (b) under the immediate supervision of the holder of a contractor licence or supervisor certificate that is endorsed with respect to that work. (6) This section applies to an individual acting in the course of his or her employment by the Crown. (6A) This section does not apply to a person who is a registered medical practitioner or a registered nurse who is commissioning, testing, verifying or witnessing a medical gas installation in the course of carrying out the person's functions as a registered medical practitioner or a registered nurse. (7) In this section— apprentice has the same meaning as in the Apprenticeship and Traineeship Act 2001. qualified supervisor, in respect of a class of work, means the holder of an endorsed contractor licence, or a supervisor certificate, authorising its holder to do that work. trainee has the same meaning as in the Apprenticeship and Traineeship Act 2001. 15C Unqualified medical gas technician work (1) An individual must not do any medical gas technician work (whether or not it is also residential building work) except— (a) as a qualified supervisor in respect of that work, or (b) as the holder of a tradesperson certificate authorising its holder to do that work under supervision, but only if the work is done under the supervision and in accordance with the directions, if any, of a qualified supervisor. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (2) Despite subsection (1), an apprentice or trainee may do medical gas technician work even though the apprentice or trainee is not a qualified supervisor or holder, but only if a qualified supervisor— (a) is present at all times where the work is being done by the apprentice or trainee, and (b) is available to be consulted by, and to give directions relating to how the work is to be done to, the apprentice or trainee. (3) A qualified supervisor who is supervising medical gas technician work being done by an apprentice or trainee as referred to in subsection (1)(b) must— (a) give directions that are adequate to enable the work to be done correctly by the apprentice or trainee performing it, and (b) personally ensure that the work is correctly done. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (4) A qualified supervisor who is supervising medical gas technician work being done by an apprentice or trainee as referred to in subsection (2) must— (a) give directions that are adequate to enable the work to be done correctly by the apprentice or trainee performing it (which, unless the qualified supervisor considers it unnecessary, must include directions requiring the apprentice or trainee to advise in detail on progress with the work), and (b) be present when the work is being done and be available to be consulted by, and to give directions relating to how the work is to be done to, the apprentice or trainee, and (c) personally ensure that the work is correctly done. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (5) This section applies to an individual acting in the course of his or her employment by the Crown. (5A) This section does not apply to a person who is a registered medical practitioner or a registered nurse who is commissioning, testing, verifying or witnessing a medical gas installation in the course of carrying out the person's functions as a registered medical practitioner or a registered nurse. (6) In this section— apprentice has the same meaning as in the Apprenticeship and Traineeship Act 2001. qualified supervisor, in respect of a class of work, means the holder of an endorsed contractor licence, or a supervisor certificate, authorising its holder to do that work. trainee has the same meaning as in the Apprenticeship and Traineeship Act 2001. 16 Obligations of holders of contractor licences The holder of a contractor licence must ensure that, when residential building work, or specialist work, for which the contractor licence authorises the holder to contract is being done by or on behalf of the holder, the work is done— (a) by the holder of an endorsed contractor licence, or of a supervisor or tradesperson certificate, authorising its holder to do the work, or (b) under the supervision, and subject to the direction, of the holder of such an endorsed contractor licence or supervisor certificate, but only if the work is done so as not to contravene a requirement made by or under this or any other Act. Maximum penalty—1,000 penalty units in the case of a corporation and 200 penalty units in any other case. Part 2A Regulation of supply of kit homes 16A, 16B (Repealed) 16C Application of requirements for contracts (1) Sections 16D–16DE apply to a contract under which a person (a kit home supplier) undertakes— (a) to supply, in person, or by others, a kit home, or (b) to vary any such undertaking previously made. (2) Section 16D(5) does not apply to a contract referred to in subsection (1)(b). 16D Form of contracts for kit homes (1) A contract must be in writing and be dated and signed by or on behalf of each of the parties to it. (2) A contract must contain— (a) the names of the parties, and (b) (Repealed) (c) a sufficient description of the kit home to which the contract relates, and (d) any plans and specifications for the kit home, and (e) the contract price if known, and (f) a conspicuous statement setting out the cooling-off period that applies to the contract because of section 16DBA. (3) The contract must comply with any requirements of the regulations. (4) If the contract price is known, it must be stated in a prominent position on the first page of the contract. (5) If the contract price is not known or may be varied under the contract, the contract must contain a warning to that effect and an explanation of the effect of the provision allowing variation of the price. The warning and explanation must be placed next to the price if the price is known. (6), (7) (Repealed) 16DAA Consumer information (1) A kit home supplier must, before entering into a contract, give the other party to the contract information, in a form approved by the Secretary, that explains the operation of this Act and the procedure for the resolution of disputes under the contract and for the resolution of disputes relating to insurance. Maximum penalty—40 penalty units in the case of a corporation and 20 penalty units in any other case. (2) This section does not apply to contracts of a class prescribed by the regulations. 16DA Offence A person must not contract to supply a kit home under a contract unless the requirements of sections 16D and 16DE in relation to the contract are complied with. Maximum penalty—80 penalty units in the case of a corporation and 40 penalty units in any other case. 16DB Copy of contract A kit home supplier must, not later than 5 clear business days after entering into a contract, give the other party to the contract a signed copy of the contract in the form in which it was made. Maximum penalty—80 penalty units in the case of a corporation and 40 penalty units in any other case. 16DBA Cooling-off period: person may rescind kit home contract within 5 days without penalty (1) A person who contracts with a kit home supplier may, by notice in writing, rescind the contract— (a) in the case of a person who has been given a copy of the signed contract—at any time before the expiration of 5 clear business days after the person is given a copy of the contract, or (b) in the case of a person who has not been given a copy of the signed contract within 5 days after the contract has been signed—at any time before the expiration of 5 clear business days after the person becomes aware that he or she is entitled to be given a copy of the signed contract. (2) The notice must state that the person rescinds the contract and must be given— (a) to the kit home supplier personally, or (b) by leaving it at the address shown in the contract as the address of the kit home supplier, or (c) by serving it on the kit home supplier in accordance with any notice or service provision in the contract. (3) If a notice is given in accordance with this section— (a) the contract is taken to be rescinded from the time it was signed, but subject to the rights and obligations conferred by this section, and (b) the kit home supplier may retain out of any money already paid to the kit home supplier under the contract the amount of any reasonable out-of-pocket expenses the kit home supplier incurred before the rescission, and (c) the kit home supplier must refund all other money paid to the kit home supplier under the contract by (or on behalf of) the party who has rescinded the contract at or since the time the contract was made, and (d) the party who rescinded the contract is not liable to the kit home supplier in any way for rescinding the contract. (4) The cooling-off period may be shortened or avoided by a provision in the contract, but the provision does not take effect unless and until the other party to the contract gives the kit home supplier (or the kit home supplier's Australian legal practitioner) a certificate that complies with subsection (5). (5) A certificate complies with this subsection if it— (a) is in writing, and (b) is signed by an Australian legal practitioner, other than— (i) an Australian legal practitioner acting for the kit home supplier, or (ii) any other Australian legal practitioner employed in the legal practice of an Australian legal practitioner acting for the kit home supplier, or (iii) any other Australian legal practitioner who is a member or employee of a firm in which an Australian legal practitioner acting for the kit home supplier is a member or employee, and (c) indicates the purpose for which the certificate is given, and (d) contains a statement to the effect that the Australian legal practitioner explained to the other party to the contract the effect of the contract, the nature of the certificate and the effect of giving the certificate to the kit home supplier. (6) A contract can be rescinded under this section even if work has been done under the contract at the time of rescission. (7) If a contract is rescinded under this section, the kit home supplier is entitled to a reasonable price for the work carried out under the contract to the date the contract is rescinded. (8) This section does not apply to a contract of a class specified in the regulations. 16DBB Person may rescind kit home contract if cooling-off warning not given (1) This section applies to a contract for the supply of a kit home to which section 16DBA applies. (2) If a contract does not contain a statement relating to the cooling-off period and a person's rights under section 16DBA (as required by section 16D(2)(f)), a person (other than the kit home supplier) may, by notice in writing, rescind the contract within 7 days of becoming aware that the contract should have contained such a notice. (3) The notice must state that the person rescinds the contract and must be given— (a) to the kit home supplier personally, or (b) by leaving it at the address shown in the contract as the address of the kit home supplier, or (c) by serving it on the kit home supplier in accordance with any notice or service provision in the contract. (4) The notice must be given in the form approved by the Secretary, if any. (5) If a notice is given in accordance with this section the contract is taken to be rescinded from the time it was signed, but subject to the rights and obligations conferred by this section. (6) A contract can be rescinded under this section even if work has been done under the contract at the time of rescission. (7) If a contract is rescinded under this section, the kit home supplier is entitled to a reasonable price for anything done under the contract to the date the contract is rescinded. (8) However, a kit home supplier may not recover under subsection (7) more than the kit home supplier would have been entitled to recover under the contract. 16DC Arbitration clause prohibited A provision in a contract or other agreement that requires a dispute under the contract to be referred to arbitration is void. 16DD Interests in land under contract (1) A contract does not give the kit home supplier or any other person a legal or equitable estate or interest in any land, and a provision in a contract or other agreement is void to the extent that it purports to create such an estate or interest. (2) Accordingly, the kit home supplier or any other person may not lodge a caveat under the Real Property Act 1900 in respect of an estate or interest prohibited by subsection (1). (3) However, subsection (1) does not apply to a provision in a contract that creates a charge over land if— (a) the land the subject of the charge is land on which the kit home is, or is to be, erected, and (b) the charge is in favour of the kit home supplier who is a party to the contract, and (c) the charge is created to secure the payment to the kit home supplier by another party to the contract of money due under the contract, but only if a court or tribunal has made an order or judgment that such