Building Disputes · Additional Resources

The Queensland Building Services Authority Act was amended in 1999 and most of those amendments commenced on the 1st October 1999.

The objects of the Act are to regulate the building industry to ensure proper maintenance of standards and to achieve a balance between the interests of building contractors and consumers. It also provides remedies for defective building work, for the efficient resolution of building disputes and provide support, education and advice for those undertaking building work and consumers.

The definition section contained in Section 4 at the beginning of the Act has had a significant number of additional words and clauses added to assist in understanding the intention of the Act.

Part 3 of the Act deals with licensing. There have been significant changes to this part of the Act. Division 2 deals with entitlement to licence for both a person and a company, the authority must be satisfied that the applicant is a fit and proper person or the directors are fit and proper persons, the applicant has the qualifications and experience required in relation to the licence and the applicant satisfies the relevant financial requirements. A factor relevant to deciding whether a person is fit and proper is having regard to commercial and other dealings in which that person is involved and the standard of honesty and integrity demonstrated in those dealings, any failure by that person to carry out commercial or statutory obligations and any other relevant factor. A new section allows the authority to make enquiries and investigations that are reasonable and appropriate in seeking confirmation about an applicant’s experience and carrying out checks with the Australian Securities and Investment Commission Bankruptcy Registers and Credit Bureaus. In addition, there have been new clauses added to Division 4 dealing with conditions imposed on granting of licences. These state that a contractor’s licence is subject to a condition that the licensee’s financial circumstances must at all times satisfy the financial requirements stated in the Board’s policies and any variations of the contractor’s turnover in assets must be notified or approved.

Another important amendment relates to information contained on the Register. The Register kept by the authority previously contained against the name of each licensee each direction of the Authority requiring the licensee to rectify building work and each order made against the licensee by the Tribunal. The new amendment now requires the Register also contain against the name of the licensee a note of each time the licensee is convicted of an offence against the Queensland Building Services Authority Act however, this information will not be recorded until all the appeal processes have been finalised. In addition, there is now a clause that now states a note made in a Register against the name of a licensee containing a note of an offence against the Act can be taken off the Register five years after it is made. The Register held by the Queensland Building Services Authority may, on payment of a fee and subject to conditions, be inspected by a member of the public.

Because of a significant degree of uncertainty and argument before the Courts and the Tribunal about unlicensed persons carrying out building work, there is now a new Section also inserted which specifically sets out the person who carries out unlawful building work is entitled to be paid but only for supplying materials and any labour that person may have paid for but not the persons own labour and it is not more than the amount agreed to carrying out the building work and does not include any amount that may be characterised as an amount paid for the person’s own direct or indirect benefit. This clarification of the law only applies to claims arising after July 1992 and not in respect of any claims filed in the Court or Tribunal before March 1999.

Another significant feature of the amendments relates to Division 8 which deals with owner builders. A new section has been inserted that states that if the Building Services Authority becomes aware that building work has been carried out and the permit should have been but was not obtained, the Authority must notify the Registrar of Titles. The Registrar of Titles once receiving notification must enter a notification on the file attached to the Register on the Title Deed. That notification can only be removed at the end of seven years. This notification on the Title Deed is to ensure that any purchaser of that building and land is put on notice that the unauthorised building work is not covered by any statutory insurance scheme which applies to most buildings under the provisions of the Queensland Building Services Authority Act. There is also a new Part 4A inserted in the Act dealing with building contracts other than domestic building contracts. The Act previously only regulated major domestic building contracts. Now all building contracts are to be put into writing and a building contractor commits an offence if he enters into a building contract and does not put it into writing. The Building Services Authority prepared and published suggested forms for building contracts. The new provisions in the Act actually state what formal requirements are to be in a written contract, as follows:-

This requirement of written terms also applies to variations. A building contractor commits an offence, if he agrees to a variation of the building contract and that variation is not put into writing and signed by the parties. Also, formal requirements in respect of a variation in that it must state the scope of the building work, the change of the contract price, if any, and for an increase in a progress payment, if applicable.

There has also been some changes to Part 2 of the Act which deals with the Queensland Building Services Authority establishment and operation. There has been no change to Part 4 which deals with domestic building contracts. There have been some amendments to Part 5 which deals with the statutory insurance scheme and which requires a contractor to pay to the Authority the appropriate insurance premium prior to work being commenced on residential construction.

There has been quite a number of amendments and additions to Part 6 which deals with rectification of building work. Some of the amendments deal with the considerations the Authority may take into account when exercising its powers to require rectification of building work by contractors. Contractors will however be given 21 days from the date of giving notice by the Building Services Authority to resolve any dispute or alleged defect with the consumer.

There are new sections dealing with the requirement of the Building Services Authority to seek tenders for carrying out rectification of building work.

There has been no real change to Part 7 of the Act which deals with disputes proceeding before the Building Tribunal.

One interesting change which is to commence on the 1st February 2000 is the recognition of inspectors who carry out or complete building inspections and these inspectors will now have to be licensed.