Sample Building Contract FOR GENERAL INFORMATION ONLY
NSW Residential Building Contract for New Dwellings
(THIS CONTRACT HAS BEEN DEVELOPED IN CONJUNCTION WITH HIA AND IS AVAILABLE ONLY FOR USE BY CLARENDON HOMES.)
OWNERS:
JOB:
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COOLING-OFF PERIOD (OWNERS’S RIGHTS) IMPORTANT NOTICE TO OWNER AND BUILDER 1.This is the statement required under section 7BA of the Home Building Act 1989 and applies to a residential building contract entered into after 1 January 2002. 2. The Owner may rescind the contract: • in the case of an Owner who has been given a copy of the signed contract, at any time before 5.00p.m. on the fifth business day after the day on which the Owner was given a copy of the signed contract; • in the case of an Owner who has not been given a copy of the signed contract, at any time before 5.00 p.m. on the fifth business day after the Owner becomes aware that he or she is entitled to be given a copy of the signed contract; EXCEPT in the circumstances listed in paragraph 3. A business day means any day other than a Saturday, Sunday or public holiday or 27, 28, 29, 30 or 31 December. 3. There is NO COOLING-OFF PERIOD, if, at or before the time the contract is made, the Owner gives to the Builder a certificate provided by the Owner’s legal representative to shorten or avoid the cooling-off altogether in accordance with section 7BA subsection (5). 4. If the Owner exercises the right to cool off by rescinding the contract, this is done without penalty. 5. This right of rescission exists regardless of whether work has already commenced under the contract although the Builder will be entitled to reasonable costs for work already done under the contract to the date of rescission.
Owner’s Initials ………………..…..…………
Builder’s Initials ………………..….……….……..
CERTIFICATE UNDER SECTION 7BA SS(5) OWNER’S CERTIFICATE
I, ………….…………………… of …………………………………., certify as follows:- 1) I am a solicitor currently admitted to practise in New South Wales. 2)I am giving this Certificate in accordance with Section 7BA subsection (5) of the Home Building Act 1989 with reference to a Building Contract (“the Contract”) between ………………..………… and Homes (NSW) Pty Limited for the erection of a home at ……………………………..…. in order that there is no cooling off period in relation to that contract.
3) I do not act for Homes (NSW) Pty Limited and am not employed in a legal practice a member or employee of which is acting for Homes (NSW) Pty Limited.
4) I have explained to ....................................................:- a)
The effect of the Contract for the erection of the home;
of this Certificate;
b)
c) The effect of giving this Certificate to the Builder is that there is no cooling off period in relation to the Contract.
DATED: ……………………………….
Owner’s Initials ………………..…..…………
Builder’s Initials ………………..….……….……..
2 2 2 2 3 3 3 4 4 4 4 4 4 5 5 6 7 7 8 8 9
Schedule 1. Particulars of Contract
Date
Contract price
Owners Builder The Land
Building period Initial Period
Encumbrances, covenants and easements
Sources of funds
Development application and complying development certificate
Liquidated damages
Interest
Builder's margin
Guarantors
Schedule 2. Progress Payments Schedule 3. Excluded Items (Clause 9) Schedule 4. Description of Work Schedule 5. Other Contract Documents
Schedule 6. Warranty Insurance
Schedule 7. Prime Cost and Provisional Sum Items (Clause 20)
10 11 13 15 15 16 16 16 17 17 18 18 19 19 19 19 19 20 21 21 21
Special Conditions
Signatures
Deed of guarantee and indemnity
General Conditions
Clause 1. Interpretation
Clause 2. Builder's Obligations Clause 3. Owner's Obligations Clause 4. Essential Matters
Clause 5. Planning and Building Approvals
Clause 6. Survey of the Site
Clause 7. Security Account and Ability to Pay Clause 8. Accuracy of Contract Documents
Clause 9. Excluded Items
Clause 10. Specified Materials
Clause 11. Materials Supplied by Owner Clause 12. Commencing the Building Works Clause 13. Site Possession and Access Clause 14. Hidden Site Conditions
Clause 15. Other Costs
Clause 16. Contract Price Adjustments
Clause 17. Progress Payments
22 22 23 24 25 25 25 25 26 26 27 27 27 27 27 28 28 28 28 28 29 29 30 30 31 31
Clause 18. Variations
Clause 19. Delays and Extensions of Time Clause 20. Prime Cost and Provisional Sum Items
Clause 21. Practical Completion Clause 22. Final Certificate
Clause 23. Notices
Clause 24. Defects Liability Period
Clause 25. Suspension
Clause 26. Early Possession
Clause 27. Ending the Contract - Breach Clause 28. Ending the Contract - Insolvency Clause 29. Effect of the Builder Ending the Contract Clause 30. Effect of the Owner Ending the Contract
Clause 31. Charge on the Site Clause 32. Liquidated Damages Clause 33. Interest on Late Payments Clause 34. Debt Collection Costs
Clause 35. Dispute Resolution
Clause 36. Risk
Clause 37. Indemnity Clause 38. Insurances
Clause 39. Statutory Warranties Clause 40. Mandatory Conditions
Clause 41. Assignment and Subcontracting
Clause 42. No Waiver Clause 43. Severance
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Schedule 1. Particulars of Contract
Item
Date This contract is dated the:
1.
(a) Contract price PRICE EXCLUDING GST: GST ON THE ABOVE AMOUNT:
2.
$.00 $.00 $.00
THE CONTRACT PRICE IS:
The contract price is GST inclusive WARNING - The contract price may vary under this contract . The reasons for variations to the contract price may include: Clause 5 - planning and building approvals; Clause 6 - a survey being required;
Clause 10 - owner specified materials or selections being unavailable; Clause 14 - a consultant being engaged to report on the site conditions; Clause 15 - an increase in a tax, charge or levy after this contract is signed; Clause 18 - variations to the building works ; Clause 20 - an adjustment for prime cost items and provisional sum items ; Clause 45 - if applicable, conditions imposed by the Developer; Clause 45.2(b) - expiry of the Tender period; Clause 46 - rubbish and debris; Clause 47 - works by owner ; Clause 49(b) - the sewer lines being found to be in a different position; Clause 49(c) - variations after date of this contract ;
Clause 49(e) - 3 phase power; Clause 49(o) - traffic report; Clause 49(q) - tiger tails; Clause 49(t) - swimming pool. The contract price does not include the costs that the owner will have to pay to a third party for conveying services to the site or connecting or installing services for use at the site . Note: The builder cannot demand or receive any of the contract price (including the deposit) until warranty insurance is in force and the owner is provided with a certificate of insurance.
(b) Deposit (Clause 17.1) THE DEPOSIT IS: $.00 (The deposit must not exceed 10% of the contract price)
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Owners
3.
Owner 1 NAME ADDRESS SUBURB ABN/ACN
STATE
POSTCODE
WORK
HOME EMAIL
MOBILE
Owner 2 NAME ADDRESS SUBURB ABN/ACN
STATE
POSTCODE
WORK
HOME EMAIL
MOBILE
Builder
4.
NAME Clarendon Homes (NSW) Pty L td ADDRESS Norwest Quay 21 Solent Circuit
SUBURB Baulkham Hills ABN/ACN 1 8 003 892 706
NSW
POSTCODE 2153
STATE
WORK
HOME
MOBILE
EMAIL HIA MEMBER NUMBER 803958 BUILDER'S LICENCE NUMBER 2298C
HIA MEMBERSHIP EXPIRY 31/03/2026
The Land THE LAND IS: LOT
5.
DP NO
CERTIFICATE OF TITLE STREET ADDRESS:
SUBURB
STATE
POSTCODE
Mortgage 1 LENDING BODY AMOUNT BRANCH CONTACT NAME
Building period (Clause 12) The building works must reach the stage of practical completion no more than weeks after the building period commences, subject to Clause 19.
6.
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Initial Period The owner must satisfy the essential matters in Clause 45 prior to the Tender expiry date (the initial period ) Note: The builder does not need to commence on site until the essential matters are satisfied and may terminate the contract if the essential matters are not satisfied. Encumbrances, covenants and easements (Clause 4) The site is affected by the following encumbrances, covenants, easements and caveats. Please specify the substance of each encumbrance, covenant, easement and caveat and give details of any registrations where registered at the Titles Office.
7.
8.
Sources of funds (Clauses 4 and 7) The contract price will be funded by:
9.
TOTAL FUNDS Note: The total funds are to equal the contract price . Lending Body 1 LENDING BODY BRANCH CONTACT NAME
Development application and complying development certificate (Clause 5) The person to make and pay for all applications for development consent and/or a complying development certificate is: (If no person stated then the owner)
10.
Liquidated damages (Clause 32) $100.00 per working day calculated on a daily basis.
11.
(If nothing stated, then $1)
Interest (Clause 33) Interest on late payments is:
12.
12.00% (If nothing stated then the post judgement interest rate applicable to judgements in the NSW Supreme Court from time to time.)
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Builder's margin The builder's margin is:
13.
25.00%
(If nothing stated then 20%)
Guarantors (refer to Deed of Guarantee and Indemnity) NAME ADDRESS SUBURB
14.
STATE
POSTCODE
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Schedule 2. Progress Payments
Stage
Percent Amount
Deposit payable on receipt of Certificate of Insurance under the Home Building Compensation scheme
5.00%
$.00
20.00%
$.00
Due on completion of concrete slab/brick foundation
25.00%
$.00
Due on erection of frame and roof trusses (no roof tiles laid)
20.00%
$.00
Due on completion of brickwork (no roof tiles laid)
Due on commencement of internal linings. (Note: Progress payment is due even though tiles may not be bedded and pointed Practical Completion (When the building works are complete except for minor omissions and defects that do not prevent the building works from being reasonably capable of being used for their usual purpose)
20.00%
$.00
10.00%
$.00
Total
100.00%
$.00
Note: • The total amount must be the same as the contract price . • Progress stages must be stated in clear and plain language.
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Schedule 3. Excluded Items (Clause 9)
The owner acknowledges that the builder is not responsible for the supply and installation of materials, goods or the provision of services that are listed below: • conditions imposed by any statutory or other authority not included in the Tender ; • items not included in the Tender ; • conditions imposed by the Developer .
Schedule 4. Description of Work
Insert brief description of the building works :
The building works are described in detail in the Tender , plans and specifications.
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Schedule 5. Other Contract Documents
In addition to these general conditions, any special conditions (Attachment "C"), the plans (Attachment "G") and specifications, the following documents form part of this contract : • Home Owners Termite Control Agreement marked Attachment "D" • Work Health & Safety Statement marked Attachment "E" • The Tender marked Attachment "F" • General Housing Specifications marked Attachment "H" • Standard Inclusions List marked Attachment "I" • Swimming Pool Safety Policy marked Attachment "J" • CSIRO guidelines marked Attachment "K" Notwithstanding any other provision in this contract , in the event of any discrepancy between any of the documents the following order of precedence shall apply: 1. The builder's Tender and variations ; 2. Special Conditions of this contract ; 3. The General Conditions of this contract ; 4. The inclusions brochure; 5. A copy of the plans which most clearly reflects the intentions of the owner ; 6. The specifications (if any); and 7. Other documents.
Schedule 6. Warranty Insurance NOTE: The builder must not carry out any building work or demand or receive any part of the contract price until warranty insurance is in force and the owner is provided with the certificate of insurance. INSURER
Cost of insurance under Part 6 of the Home Building Act 1989 (NSW) (Home Building Act) (or alternative indemnity product under Part 6B of the Home Building Act) is $
Except for the builder's interest in this contract and the legal requirement for warranty insurance to be arranged in respect of the building works , the builder receives no benefit in relation to arranging such insurance.
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Schedule 7. Prime Cost and Provisional Sum Items (Clause 20)
See Tender for details, if applicable.
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Special Conditions
Marked Attachment "C" numbered 44 to 54
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Signatures
This contract is made between the Owner and the Builder . The schedules form part of this contract .
The Consumer Building Guide in Attachment B does not form part of this contract . The parties have signed this contract on the date stated in Item 1 of Schedule 1. The Owner has received the Checklist in Attachment A and the Consumer Building Guide in Attachment B before signing this contract . The Owner has read and understood this contract .
Owner 1
NAME
SIGNATURE
WITNESS'S SIGNATURE
WITNESS'S NAME AND ADDRESS
Owner 2
NAME
SIGNATURE
WITNESS'S SIGNATURE
WITNESS'S NAME AND ADDRESS
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Builder
NAME
SIGNATURE
/bs1/
Signed for and on behalf of: Clarendon Homes (NSW) Pty L td
WITNESS'S SIGNATURE
/na/
WITNESS'S NAME AND ADDRESS
Please note 1. Where a company is signing: 'by A. Smith, Director' or 'Signed for and on behalf of XYZ Pty Ltd'. 2. Where a partnership is signing: 'Enterprises by Andrew Smith, Partner. Signed for and on behalf of Andrew Smith and Jane Smith.'
STATEMENT SETTING OUT THE OWNER'S RIGHT TO WITHDRAW FROM THIS CONTRACT UNDER SECTION 7BA OF THE HOME BUILDING ACT
This contract may be subject to a cooling off period that entitles the owner to rescind this contract by giving a notice in writing as required by Section 7BA of the Home Building Act:
(a) If the owner has been given a copy of the signed contract – at any time before the expiration of 5 clear business days after the owner is given a copy of the signed contract ; or;
(b) If the owner 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 owner becomes aware that the owner is entitled to be given a copy of the signed contract
If the owner exercises the right to cool off then this contract is rescinded and the builder is entitled to a reasonable price for the work carried out under the contract until the date the contract is rescinded.
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Deed of guarantee and indemnity
Interpretation
BUILDER IS OWNER IS
Guarantors ADDRESS LINE 1 ADDRESS LINE 2 SUBURB
STATE
POSTCODE
Contract is that between the Builder and the Owner dated:
Background
The Guarantor executed this Deed at the Owner's request. The Guarantor is aware of the Owner's obligations under the Contract .
Operative
1. Guarantee The Guarantor guarantees to the Builder , the fulfilment of the Owner's obligations under the Contract including but not limited to the due payment of all moneys arising out of the subject matter of the Contract. 2. Indemnity The Guarantor indemnifies the Builder against any claim, loss or damage arising out of the subject matter of the contract caused by or resulting from any non-fulfilment of the Owner's obligations under the Contract . 3. Principal Debtor The Guarantor is deemed to be principal debtor jointly and severally liable with the Owner to discharge the Owner's obligations under the Contract . 4. No Merger The Guarantor agrees that this Deed does not merge on completion or on the ending of the Contract by either party and continues notwithstanding that the Owner , if a corporation, is placed in liquidation or if a person, is declared bankrupt. 5. No Release The Guarantor is not discharged by: (a) any variation to the Contract including a variation to the building works; (b) any delay or claim by the Builder to enforce a right against the Owner ; and (c) any forbearance given to the Owner to perform the Owner's obligations under the Contract . 6. Severability Any provision of this Deed which is illegal, void or unenforceable will be ineffective to the extent only of such illegality, voidness or unenforceability and will not invalidate any other provision of this Deed.
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7. When More Than One Guarantor If the Guarantor consists of more than one person, this guarantee and indemnity is not affected by the failure of all persons comprising the Guarantor to sign this guarantee and indemnity or this Deed being unenforceable against any of them. 8. Waiver of Rights The Guarantor waives all rights as surety inconsistent with any of the terms of this Deed or to the detriment or disadvantage of the Builder .
Guarantor's Statement
I/we understand the nature, terms and extent of the guarantee and indemnity provided by me/us and further acknowledge that I/we have obtained legal advice prior to executing this Deed. Signed as a Deed
SIGNATURE
WITNESS'S NAME AND ADDRESS
SIGNATURE
DATE
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General Conditions
Clause 1. Interpretation
1.1 In this contract : ' adverse weather ' means any weather condition that, in the reasonable opinion of the builder , prevents work from being carried out in the usual manner; ' all weather access ' means access in all weather conditions as required by the builder for carrying out the building works . ' builder ' means the party named in Item 4 of Schedule 1 and, where appropriate, includes a representative appointed by the builder ; ' builder's margin ' means the percentage stated in Item 13 of Schedule 1; ' building period ' means the number of calendar weeks or working days stated in Item 6 of Schedule 1 as extended by Clause 19; ' building works ' means the building works to be carried out, completed and handed over to the owner in accordance with this contract as shown in the contract documents and includes variations . ' contract ' means the agreement between the builder and the owner set out in the contract documents ; ' contract documents ' means these general conditions, any special conditions, the plans, the specifications and other documents specified in Schedule 5; ' contract price ' means the amount stated in Item 2(a) of Schedule 1, as changed by this contract ; ' contract price adjustment ' means an amount that is added to or deducted from the contract price under this contract ; ' date of practical completion ' means the date that is deemed to be the date of practical completion under Clause 21 except where the date is determined by dispute resolution (including litigation) then it is that date; ' initial period ' means the period stated in Item 7 of Schedule 1; ' lending body' means any corporation or institution that lends to the owner part of or the whole of the contract price ; ' notice of practical completion ' means the notice given by the builder to the owner under Clause 21; ' owner ' means the party named in Item 3 of Schedule 1 and includes the owner's agents, employees and invitees; ' practical completion' means when the building works are complete except for minor omissions and defects that do not prevent the building works from being reasonably capable of being used for their usual purpose; ' prime cost item ' means an item (for example a fixture or fitting) that either has not been selected or cannot be costed exactly at the time that the contract is entered into and for which the builder has made allowance in the contract price ; ' provisional sum item ' means an item of work (including labour and materials) which cannot be costed exactly at the time that the contract is entered into and for which the builder has made allowance in the contract price ; ' rock ' means material, other than clay or soil, that cannot, in the builder's opinion, be readily removed by hand;
Refer to Clause 16 for when to pay a contract price adjustment. Refer to Clause 21 for practical completion.
Refer to Clause 21.
Refer to Clause 20.
Refer to Clause 20.
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' security account ' means an account described in Clause 7;
Refer to Clauses 4 and 7.
' site ' means the land described in Item 5 of Schedule 1; ' stage ' means any of the stages described in Schedule 2;
' statutory or other authority ' means the principal certifying authority, Local Government, State or Federal Government, or any Government agency that has power to affect the building works ; ' variation ' means: (a) an omission, addition or change to the building works ; or (b) a change in the manner of carrying out the building works ; ' warranty insurance ' means Home Building Compensation (HBC) cover as referred to in the Home Building Act; ' working days ' means days other than Saturdays, Sundays or public holidays; and like words have corresponding meanings. 1.2 In this contract the general notes, the table of contents, clause headings and side notes do not form part of this contract and cannot be used in its interpretation.
Refer to Clause 18.
Clause 2. Builder's Obligations Refer to Clause 39
2.1 The builder must carry out and complete the building works in accordance with this contract .
for Statutory Warranties. Refer to Clause 40 for Mandatory Conditions.
Clause 3. Owner's Obligations
3.1 The owner must pay the contract price and other money that becomes payable under this contract in the manner and at the times stated in this contract . 3.2 If there is more than one owner : (a) the obligations in this contract apply to each of them individually and to all of them as a group; (b) a quote, notice, claim or any other communication to the owners has only to be given to one of the owners ; and (c) only one of the owners has to sign a quote, notice, instruction, direction or other communication to bind all of the owners .
Clause 4. Essential Matters
4.1 The owner must, within the initial period , give the builder :
Evidence of ownership includes a copy of the certificate of title to the site.
(a) written proof that the owner owns or is otherwise entitled to build on the site ; (b) written details of any encumbrances, covenants, easements and caveats affecting the site ; (c) if required written evidence that the security account has been established and the amount required to be paid into the security account is held in clear funds; (d) if the owner is obtaining finance from a lending body , written advice from the lending body that: (i) the amount of finance, when added to the owner's own available funds, is sufficient to pay the contract price ; and
Refer to Clause 7 for the security account.
The builder does not have to start the works until this Clause is satisfied. Refer to Clause 12.
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(ii) the building works may commence; (e) written evidence of development consent for the building works ; (f) if required, written proof that the owner has obtained any building approvals and has satisfied any conditions imposed by a statutory or other authority where required prior to commencement of work; and (g) if required, written proof that the owner has appointed the principal certifying authority and has paid any costs associated with such appointment. 4.2 If the owner fails to satisfy all of the above within the initial period the builder may end this contract , by giving the owner a written notice to that effect, at any time prior to physical commencement of the building works . 4.3 If the builder so ends this contract , the owner must pay to the builder the price of the services provided and works carried out to the date that this contract is ended. The price includes the builder's margin applied to the costs incurred by the builder which costs include the cost of materials on site or already ordered from suppliers that are non-returnable.
The builder may end this contract.
Clause 5. Planning and Building Approvals
5.1 The party named in Item 10 of Schedule 1 must obtain and pay for all applications for development consent and/or a complying development certificate for the building works . 5.2 If the builder is named in Item 10 of Schedule 1, the owner must provide a signed statement to the effect that the owner consents to the builder making any application for development consent and/or a complying development certificate in relation to the building works . 5.3 Notwithstanding that the builder may be named in Item 10 of Schedule 1, unless otherwise stated in this contract , at all times the owner is responsible for the payment of any and all additional fees, charges, taxes, costs and levies, however described, associated with: (a) inspections conducted by the principal certifying authority or its agents, employees and invitees; (b) registrations relating to title to the site ;
(c) planning and building approvals for the building works ; (d) complying with the conditions of the development consent, including but not limited to payment of infrastructure contributions.
5.4 If the requirements of a statutory or other authority necessitate a change to the building works the builder must inform the owner of the change required and ask for a variation for the building works to comply with the requirements.
For variations refer to Clause 18.
Clause 6. Survey of the Site
6.1 If, in the builder's opinion, the boundaries of the site are unclear, the builder must give the owner a written notice asking the owner to provide a survey of the site . 6.2 If the owner does not provide a survey within 5 working days of the builder giving notice the builder may, as the owner's agent, obtain the survey. The owner must pay to the builder on demand the total of the price of the survey plus the builder's margin applied to that price.
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Clause 7. Security Account and Ability to Pay This is an essential matter. Refer to Clause 4.
7.1 The owner , when requested by the builder at any time, must deposit that part of the contract price not being supplied by a lending body into an account at a bank, building society or a similarly recognised financial institution (to be known as a security account ). The security account must be in the joint names of the owner and the builder with: (a) the owner receiving interest, if any, on the money deposited in the account; and (b) the builder as joint signatory for any withdrawal from the account. 7.2 The owner must, within 2 working days of being requested by the builder at any time, give the builder written evidence, to the builder's satisfaction, of the owner's ability to pay all money that is or may become payable to the builder under this contract .
Clause 8. Accuracy of Contract Documents
8.1 Where the owner supplies any contract document , the owner warrants: (a) that contract document is accurate; and (b) the suitability of the design, materials and methods of working each specified therein. 8.2 If either party becomes aware of any error, ambiguity or inconsistency in or between the contract documents , that party must, within 2 working days of becoming aware, give the other party written notice detailing the problem. 8.3 The owner must, within 2 working days of receiving a notice or becoming aware of a problem, give the builder written instructions as to how the builder is to proceed with the building works . 8.4 If the owner fails to give the builder such written instructions within 2 working days , the builder may proceed with the building works applying the following order of precedence:
Notices are to be given in the manner set out in Clause 23.
(a) any special conditions; (b) these general conditions; (c) the specifications; (d) the plans, then (e) other documents.
8.5 If:
(a) compliance with the owner's instructions or the order of precedence, as applicable, involves more or less cost than a reasonable builder would have anticipated on the signing of this contract ; and (b) the problem is caused by documents other than those provided by the builder , the owner is deemed to have asked the builder for a variation to carry out that work and the procedure for variations in Clause 18 will apply. 8.6 In relation to a document that is: (a) supplied by; (b) prepared under instruction of; or (c) prepared from sketches provided by,
For variations refer to Clause 18.
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Indemnity is a legal concept requiring the payment to the other party of all costs and expenses.
a party, that party indemnifies the other party for all costs, expenses, losses or damages that are incurred by the other party relating to or as a consequence of any claim for breach of copyright or moral right arising from the builder carrying out the building works in accordance with that document. 8.7 The builder owns the copyright in any document prepared by the builder .
Clause 9. Excluded Items
9.1 The owner and the builder agree that the items set out in Schedule 3 are excluded from this contract .
Clause 10. Specified Materials For variations refer to Clause 18.
10.1 If any material specified to be used in the building works is unavailable when required by the builder , the builder may ask the owner for a variation to substitute the use of similar material.
Clause 11. Materials Supplied by Owner These items should be listed in a contract document.
11.1 The goods and services to be provided by the owner must be: (a) suitable for inclusion into the building works ;
(b) supplied or completed in the time required by the builder ; and (c) completed to the satisfaction of the builder .
11.2 If the owner breaches the above condition the builder may elect to either: (a) carry out the building works without incorporating the goods or services; or (b) do either or both of the following: (i) suspend the carrying out of the building works under Clause 25; (ii) give to the owner a notice of default under Clause 27. 11.3 The builder is not responsible for the performance and suitability of goods and services provided by the owner .
For variations refer to Clause 18.
Clause 12. Commencing the Building Works
12.1 The builder is to commence the building works within 20 working days after the day that: (a) the builder receives all necessary building permits and planning approvals for the building works to commence; or (b) the owner satisfies all of the requirements of Clause 4, whichever is later. 12.2 The building period commences on the date the builder starts performing the building works on the site .
Clause 13. Site Possession and Access
13.1 The owner gives the builder exclusive possession of the site to carry out the building works . 13.2 The owner must provide all weather access . If the owner does not provide all weather access and the builder will be required to carry out further work to achieve such access the owner is deemed to have asked the builder for a variation to carry out that extra work and the procedure for variations in Clause 18 applies.
For variations refer to Clause 18.
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13.3 The owner , the owner's agents and officers of the lending body : (a) must not hinder; (i) the builder's access or possession of the site ; or (ii) the progress of the building works ; (b) must not: (i) make inquiry of;
(ii) issue directions to; or (iii) give instructions to, the builder's workers or subcontractors. Communication must only be with the builder's nominated person; and (c) may only have access to the building works at reasonable times and after giving reasonable prior notice for the purposes of inspecting the progress of the building works .
13.4 The builder's unused materials on the site are the property of the builder .
Clause 14. Hidden Site Conditions 14.1 If:
(a) either party believes that the surface or sub-surface conditions of the site may not support or are likely to affect the building works , or (b) rock is found at the site , the builder may, or must at the owner's written request, as the owner's agent, retain consultants to report on the site conditions and their effect on the building works and the cost of every consultant is to be paid by the owner as a contract price adjustment . 14.2 The builder must promptly give the owner a notice detailing the details of any extra work required and the estimated cost of that work. The builder must attach a copy of any report to that notice. 14.3 Subject to sub-clause 14.6, the owner must: (a) within 5 working days of receiving the notice under sub-clause 14.2, confirm in writing that the builder is authorised to proceed with the extra work as detailed by the builder under sub-clause 14.2; (b) pay the builder the sum of the total cost of all extra work plus the builder's margin applied to that cost at the next progress payment after the work is carried out unless a different time is agreed. 14.4 If the owner does not give the builder written notice under sub-clause 14.3 the builder may do either or both of the following: (a) suspend the carrying out of the building works under Clause 25; (b) end this contract and Clause 29 applies. 14.5 The builder is only entitled to payment for such extra work if the actual site conditions differ from those either: (a) disclosed or known to the builder prior to this contract being signed; or (b) shown in the contract documents , and if the effect of that difference requires more or less work than that which a reasonable builder would have anticiapted on the signing of this contract .
For variations refer to Clause 18.
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14.6 If the estimated price of the extra work exceeds 5% of the contract price , the owner may end this contract by giving the builder a written notice to that effect within 5 working days of receiving the estimated cost from the builder under sub-clause 14.2 and sub-clause 14.7 applies. 14.7 If the owner so ends this contract , the owner must pay to the builder the price of the works carried out to the date that this contract is ended. The price includes the builder's margin applied to the costs incurred by the builder which costs include the cost of materials on site or already ordered from suppliers that are non-refundable. 15.1 If, after this contract is signed, a statutory or other authority introduces or increases: (a) any tax, charge, levy or other regulation; or (b) any requirement that affects the building works , that causes any cost increase in the cost of the building works there is a contract price adjustment . 15.2 If the builder is required to do more or less work to comply with a requirement of a statutory or other authority the builder must ask for a variation for the change required and Clause 18 applies.
The owner may end this contract.
Clause 15. Other Costs The contract price may change due to an increased cost.
For contract price adjustments refer to Clause 16. For variations refer to Clause 18.
Clause 16. Contract Price Adjustments
16.1 A contract price adjustment is due and payable at the next progress payment after it arises unless a different time is agreed. 16.2 When there is a deletion to the building works or substitution of materials resulting in a contract price adjustment , the contract price will be adjusted at the progress payment of the stage where the building works would have been carried out, unless a different time is agreed in writing.
Clause 17. Progress Payments
17.1 The owner must pay the deposit stated in Item 2(b) of Schedule 1 on the later of the day that: (a) this contract is signed by the owner ; and (b) warranty insurance described in Schedule 6 is in force and the owner is provided with a certificate of insurance for such insurance. The deposit is brought to account with the first progress payment. 17.2 The owner must pay the contract price progressively as claimed by the builder . 17.3 The builder must give the owner a written claim for a progress payment for the completion of each stage . 17.4 A progress claim is to state: (a) the amount claimed and not paid for the stage completed; (b) the amount claimed and not paid for contract price adjustments ; (c) the amount claimed and not paid for variations ; and (d) the sum of the above amounts. 17.5 The owner must pay a progress claim within 5 working days of the builder giving the claim.
Payment does not mean that the owner accepts the work is done in accordance with the contract. The owner cannot hold any money back on a progress claim.
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17.6 Other than in relation to the final progress claim:
(a) payment of a progress claim is on account only; and (b) the owner has no right of set off.
Clause 18. Variations Variations may change the contract price.
18.1 A variation must be in writing and signed by or on behalf of the builder and the owner . Either the owner or the builder may ask for a variation . 18.2 If the owner asks for a variation , the builder must reply in writing as soon as is reasonable.
Refer to Clause 40 for Mandatory Conditions.
18.3 The reply is to be either:
(a) a signed written offer to carry out the variation detailing: (i) the work required to carry out the variation ; (ii) the price of the variation ; and (iii) any extension of time to the building period as a result of carrying out the variation ; or (b) a refusal to carry out the variation . The builder does not have to give any reasons for refusing to carry out a variation . 18.4 If the owner does not give to the builder signed written acceptance of the builder's offer within 5 working days of the builder giving the reply, the builder's offer is deemed to be withdrawn 18.5 If the price of a variation is not agreed prior to it being carried out that price includes: (a) the deduction of the reasonable cost of all deletions from the building works ; and (b) the addition of the total cost of all extra work plus the builder's margin applied to that cost. 18.6 The price of a variation is due and payable at the next progress payment after it is carried out unless a different time is agreed. 18.7 The owner must not unreasonably withhold consent to any variation which is required for the building works to comply with the law or a requirement of any statutory or other authority . 18.8 The owner acknowledges that the colour and grain of timber, granite and other natural materials can vary. The builder is to use reasonable endeavours to match the colour or grain of any sample selected by the owner but is under no liability if there is a difference and such difference is not a variation .
The builder may ask the owner for evidence of ability to pay for the variation. See Clause 7.2.
Clause 19. Delays and Extensions of Time
19.1 The builder is entitled to a reasonable extension of the building period if the building works are delayed by the builder suspending the building works under Clause 25 or from a cause beyond the sole control of the builder including but not limited to:
(a) a variation or a request for a variation by the owner ; (b) an act of God, fire, explosion, earthquake or civil commotion; (c) adverse weather ; (d) an industrial dispute; (e) a dispute with adjoining or neighbouring residents or owners; (f) anything done or not done by the owner ; (g) delays in getting any approvals;
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(h) a delay in the supply of materials selected by the owner ; (i) the need for a survey of or other report in relation to the site ; or (j) the industry shutdown being a 3 week period commencing on or about 22 December in each year if construction during the Christmas period could not have been reasonably foreseen at the date of this contract. 19.2 The builder is to give the owner written notice of an entitlement to an extension of time detailing both: (a) the cause of the delay; and (b) the extension of time, within 10 working days after becoming aware of both the cause and the extent of the delay. 19.3 If the owner wishes to dispute the builder's entitlement to an extension of time the owner must, within 5 working days of receiving the builder's notice, give the builder a written notice: (a) disputing the extension of time; and (b) detailing the reasons why the extension of time is disputed. 19.4 For every day the subject of an extension of time caused by an act, default or omission of the owner , delay damages, being the total of the actual increase in cost to the builder to carry out the building works plus the builder's margin applied to that cost is due and payable to the builder on demand. 20.1 The owner must give the builder written notice of the owner's selection of a prime cost item within 5 working days after the builder's request to do so. 20.2 If a prime cost item selected by the owner is unavailable, the owner must give the builder written notice of an alternative selection within 5 working days of the builder advising that the item selected is unavailable. 20.3 If the owner fails to give written notice under sub-clause 20.2, the builder may select an alternative item that is similar in quality to the unavailable item. 20.4 Each prime cost item must have an allowance stated next to it. The allowance is the estimated price to supply the item and does not include an amount for the builder's margin . 20.5 Each provisional sum item must have an allowance stated next to it. The allowance is the estimated price of providing the work and does not include an amount for the builder's margin . 20.6 In relation to each prime cost item and provisional sum item , if the actual price is: (a) less than the allowance, the difference is deducted from the contract price ; (b) more than the allowance, the total of the difference and the builder's margin applied to that difference is added to the contract price . 20.7 Any adjustment to the contract price for a prime cost item or a provisional sum item is due and payable with the next progress payment, unless a different time is agreed in writing. The builder is to provide to the
For dispute resolution refer to Clause 35.
The builder is entitled to extra costs where the owner is responsible for a delay.
Clause 20. Prime Cost and Provisional Sum Items Refer to Schedule 7 or other contract documents for prime cost items.
Refer to Schedule 7 or other contract documents for provisional sum items. This may change the contract price.
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owner such invoices, receipts or other documents as may reasonably be expected to evidence the actual price of a prime cost item or provisional sum item .
Clause 21. Practical Completion Refer to the definition of practical completion in Clause 1.
21.1 The builder must give the owner a notice of practical completion at least 5 working days prior to practical completion being reached. 21.2 The notice of practical completion is to: (a) state the builder's assessment of the date of practical completion ; (b) state the date and time for the owner to meet the builder on the site to carry out an inspection of the building works ; and (c) have attached the builder's final progress claim. 21.3 The owner must meet the builder on the site for the inspection at the date and time stated by the builder in the notice of practical completion or at a date and time otherwise agreed with the builder and either: (a) pay the amount of the final progress claim; or (b) if the owner believes that the building works have not reached practical completion give the builder a written notice detailing anything to be done to reach practical completion . 21.4 If the owner pays the amount of the final progress claim under sub-clause 21.3(a) the date of practical completion stated in the notice of practical completion is deemed to be the date of practical completion . 21.5 If the owner gives the builder a notice under sub-clause 21.3(b) of work to be completed: (a) the builder must carry out any work required for practical completion and give the owner a further notice of practical completion ; (b) if the builder does not agree that there is any further work to be carried out to reach practical completion the builder : (i) must give the owner written notice rejecting the owner's notice. In this case, such a notice will also serve as notice of the matters in dispute for the purposes of Clause 35; (ii) is not obliged to carry out any further work on the site while the dispute remains unresolved. 21.6 If the owner does not pay the amount of the final progress claim under sub -clause 21.3(a) or give the builder a notice under sub-clause 21.3(b); (a) the amount of the final progress claim is deemed to be a debt due and owing from the owner to the builder ;
The owner is responsible to insure the building works from the date of practical completion. See Clause 38.7
For dispute resolution refer to Clause 35.
(b) the date of practical completion stated in the notice of practical completion is deemed to be the date of practical completion ; and (c) the owner acknowledges the building works have reached practical completion .
21.7 On the owner paying the final progress claim, the builder must give the keys, certificates, warranty documentation and other documents pertaining to the building works to the owner .
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Clause 22. Final Certificate
22.1 The builder is not required to obtain any certificate of occupancy or final inspection certificate relating to the building works .
Clause 23. Notices
23.1 Unless otherwise stated in this contract , a notice given under this contract must be in writing and in English. 23.2 Notices may be given: (a) personally; (b) by sending it by prepaid post to the party's address shown in Item 3 or Item 4 of Schedule 1 or the address that is last notified in writing; (c) by sending it by facsimile to the party's facsimile number shown in Item 3 or Item 4 of Schedule 1 or the facsimile number that is last notified in writing; or (d) by sending it by email to the party's email address shown in Item 3 or Item 4 of Schedule 1 or the email address that is last notified in writing. (a) if given personally, by handing it to the other party; (b) if sent by prepaid post, 5 working days after posting; (c) if sent by facsimile, at the time and on the day shown in the sender's transmission report; (d) if sent by email, at the time of transmission unless the sender's server or email indicates a malfunction or error in transmission or the recipient immediately notifies the sender of an incomplete or illegible transmission. 23.4 If the notice is deemed to be received on a day which not a working day or after 5pm, it is deemed to be received at 9am on the next working day . 23.5 If two or more people comprise a party, notice to one is effective notice to all. 23.3 Notice is deemed to be received:
Clause 24. Defects Liability Period
24.1 The defects liability period is a period of 13 weeks commencing on and including the date of practical completion . 24.2 The owner may, before the end of the defects liability period, give the builder one list of defects in the building works that appear after the date of practical completion . 24.3 The builder must rectify defects that are the builder's responsibility and which are notified to the builder during the defects liability period. 24.4 The owner must provide the builder with reasonable access to carry out rectification works.
Refer also to the Statutory Warranties set out in Clause 39.
Clause 25. Suspension The builder may suspend without ending this contract.
25.1 If the owner is in breach of this contract the builder may suspend the carrying out of the building works . 25.2 The builder must give to the owner written notice of the suspension and details of the breach.
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25.3 The builder must recommence the carrying out of the building works within a reasonable time after the owner remedies the breach and gives the builder written notice of that fact. 25.4 The builder's exercise of the right of suspension does not prevent the builder from exercising any right to end this contract under Clause 27 in regard to the same occurrence.
The builder must claim an extension of time under Clause 19.
Clause 26. Early Possession If this Clause applies the owner is in substantial breach of this contract. 26.1 If the owner :
(a) enters enter into occupation of the site or any part of the site ; (b) takes control of the building works or the site ; or (c) prevents or inhibits the builder from carrying out the building work , without the builder's written consent, the owner commits a substantial breach of this contract entitling the builder to elect to either: (i) treat the owner's actions as a repudiation of this contract and accept that repudiation; or (ii) do either or both of the following: (i) suspend the carrying out of the building works under Clause 25; (ii) give the owner a notice of default under Clause 27.
Clause 27. Ending the Contract - Breach If there is a dispute consider dispute resolution. Refer to Clause 35.
27.1 A substantial breach of this contract by the builder includes but is not limited to if the builder : (a) has its licence cancelled; (b) suspends the carrying out of the building works other than under Clause 25. 27.2 A substantial breach of this contract by the owner includes but is not limited to if the owner : (a) fails to pay any amount by the due date; (b) fails to give evidence of ability to pay as requested; (c) fails to establish and maintain a security account if requested; (d) interferes with or obstructs the progress of the building works ; (e) fails to give or interferes with the builder's possession of the site ; or (f) fails to give an instruction or direction required within the time specified. 27.3 If a party is in substantial breach of this contract the other party may give the party in breach a written notice stating: (a) details of the breach; and (b) that, if the breach is not remedied within 10 working days , that party is entitled to end this contract . 27.4 If 10 working days have passed since the notice of default is given and the breach is not remedied then the party giving the notice of default may end this contract by giving a further written notice to that effect. 27.5 All notices to be given under this Clause must be given by registered post or personally.
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