Terms and Conditions of Trade
1. Contractor’s Main Obligations
The contractor will carry out and complete the works in accordance with the signed quote.
2. Payment
The owner must pay to the contractor:
(a) the contract price by way of 10% deposit on signing of quote;
(b) any other amount which is payable under this contract on demand after the contractor has carried out the work or incurred the cost.
The owner must pay a progress claim within 5 working days of the contractor giving the claim.
3. Access and use of facilities
The owner must:
(a) give the contractor uninterrupted access to and possession of the site to carry out the works; and
(b) provide the contractor with adequate access to available water, electricity, toilet and washing facilities.
The contractor will give possession of the site back to the owner when the owner has paid all money payable to the contractor under this contract.
4. Commencement
Before the contractor is obliged to commence the works the owner must give the contractor written evidence:
(a) that the owner owns or is otherwise entitled to have the works carried out on the site;
(b) of any easements, covenants and encumbrances affecting the works on the site;
(c) of the owners ability to pay the contract price; and
(d) that all necessary building and planning approvals have been received.
The building period commences on the date the contractor commences the work.
5. Delays
The contractor is not responsible for any delay caused by something beyond the contractor’s sole control including any failure by the owner to:
(a) make a selection; or
(b) give the contractor adequate access to carry out the works. The building period will be extended by whatever time is reasonable if the contractor claims an extension of time by giving the owner written notice.
6. Surplus Materials
Unless otherwise agreed somewhere else in this contract, demolished and surplus materials are the contractor’s property.
7. Prime Cost and Provisional Sum Items
Details of these items must be attached to this contract. The owner must select all prime cost items or provisional sum items when required by the contractor.
Each prime cost item or provisional sum item must have an allowance stated next to it for the price of the supply of the item or providing the work. Where the actual price is more than the allowance, the difference plus the contractor’s margin applied to the difference is added to the contract price and is payable by the owner.
8. Variations
If the owner requests a variation, the contractor will give the owner a written quote detailing the work. If the owner agrees to the variation by signing the quote and returning the signed quote to the contractor, the contractor will then do the variation in the time agreed.
9. Unforeseen circumstances
The contractor is not responsible for any problems with the site which are only revealed when carrying out the works. The contractor will carry out any work needed to fix the problem if the contractor considers it necessary for satisfactory completion of the works. Any additional work necessary due to an unforeseen circumstance is a variation and Clause 8 applies. If a price is not agreed the owner will be charged the actual cost to carry out the work plus the contractor’s margin.
10. Works by owner
The owner must have the site ready when required by the contractor. If the owner does not have the site ready, any additional work necessary to carry out the works is a variation and Clause 8 applies. If a price is not agreed the owner will be charged the actual cost to carry out the work plus the contractor’s margin.
11. Practical completion
The contractor must:
(a) reach practical completion by the end of the building period, as extended; and
(b) give the owner a written notice of practical completion. The notice of practical completion is to state the date of practical completion and set out the contractor’s final progress claim. On practical completion, the owner must:
(c) inspect the works with the contractor; and
(d) give the contractor a written, signed list of any defective or unfinished work.
The owner must immediately pay the amount of the final progress payment claim on practical completion.
12. Contractors right to fix
If at any time the owner claims the works are defective, the owner must, as soon as possible, tell the contractor by written notice. If the contractor accepts responsibility, the contractor has the right to fix the defect, but must do so within 28 days.
13. Subcontracting
The contractor may sub-contract any of the contractor obligations. The owner must not give instructions to or make inquiry of the contractor’s subcontractors, workers or suppliers.
14. Risk
All materials are at the owner’s risk once delivered to the site.
15. Insurance
The contractor will have public liability insurance of at least $10M. The owner must keep and maintain until the date of practical completion a home and contents insurance policy over the site and all of the owner’s property on the site including cover against fire, burglary, storm and tempest.
16. Prevailing documents
These general conditions, any attachments dealing with prime cost and provisional sum items, the plans and the specifications have precedence in that order if there is any inconsistency between them
17. Debt collecting costs
The owner must reimburse the contractor any debt collecting costs (and commissions), including any legal fees on a solicitor and own client basis where the contractor pays to recover, or attempt to recover any overdue payment.
18. Interest
The contractor may charge the owner interest at the rate stated in Item 10 from the day on which an amount falls due to be paid to the contractor up to and including the day that amount is paid.
19. Retention of title
Title in materials does not pass to the owner until it has been paid for in full. If the owner fails to make a due payment, the contractor may enter the site and take reasonable action to remove uninstalled materials without being liable for damage to the site caused by such removal.
20. Copyright
The contractor owns all copyright created by the contractor in the plans, the specifications and the drawings. If the owner gives the contractor any sketch, plan or other document which infringes someone else’s copyright or moral rights, the owner indemnified the contractor against all claims and costs.
21. Owners joint and several liability
If there is more than one owner under this contract, their obligations are joint and several.
22. Suspension
If the owner is in breach of this
contract, the contractor may suspend the carrying out of the works. The contractor must recommence the carrying out of the works within a reasonable time after the owner has given written notice to the contractor that the owner has remedied the breach.
23. Termination
If either party is in serious breach of this contract, the party not in breach may give the other party a written request to remedy that breach. If the breach is not remedied within 5 working days, the party not in breach may end this contract by giving written notice to that effect.
24. Insolvency
Should a party become insolvent, then the other party may, by giving a written notice, end this contract. To be insolvent means:
(a) any act of bankruptcy under the Bankruptcy Act by a natural person;
(b) the appointment of a liquidator, provisional liquidator, receiver, receiver and manager, administrator or the entering into of a deed of arrangement if a corporation; or
(c) any act of insolvency.
25. GST
Where a price is not agreed for an additional charge or omission from the works, the amount of GST attributable to the value for that supply is to be added to the price calculated under the terms on this contract.
26. Mandatory Conditions
To the extent required by the Home Building Act and subject to this clause, the works will comply with:
(a) the Building Code of Australia (to the extent required under the Environmental Planning and Assessment Act 1979, including any regulation or other instrument made under that Act);
(b) all other relevant codes, standards and specifications that the works are required to comply with under any law; and
(c) the conditions of any relevant development consent or complying development certificate. The contractor is not liable if the works do not comply with the above requirements if the failure relates solely to:
(d) a design or specification prepared by or on behalf of the owner (but not by or on behalf of the contractor); or
(e) a design or specification required by the owner, if the contractor has advised the owner in writing that the design or specification contravenes the above. To the extent required by the Home Building Act:
(f) all plans and specifications for the works including any variations to those plans and specifications form part of this contract;
(g) any agreement to vary this contract, or to vary the plans and specifications for the works, must be in writing and signed by the parties;
(h) the contractor will notify the owner if a registered certifier is required with respect to particular work done under this contract;
(i) the selection of a registered certifier is the sole responsibility of the owner subject to section 6.6 (4A) or 6.12 (4A) of the Environmental Planning and Assessment Act 1979);
(j) the contractor will not object to the selection by the owner of any particular registered certifier.
27. Whole agreement
This contract is complete in itself and overrides any earlier agreement, whether made verbally or in writing.
28. Meanings
In this contract (and where appearing in italics): “building period” means the number of days stated in Item 8 as extended under Clause 5; “contract price” means the amount stated in Item 5(a); “contractor” means the contractor named in Item 3; “contractor’s margin” means the percentage stated in Item 9; “working days” mean days other than Saturdays, Sundays or public holidays; “owner” means the owner named in Item 2; “practical completion” means when the works are finished except for minor defects or omissions; “site” means that part of the land described in Item 4 where the works are to be carried out; “variation” means any change in the works or the method of carrying out the works; “works” means the works described in Item 6 including any variations, and like words in italics have a corresponding meaning.