1 DEFINITIONS
1.1 In this document the following terms have the following meanings (whether or not the terms
commence with capital letters) unless the context requires otherwise:
1.1.1 “Business Day” means a day that is not:
a a Saturday or Sunday; or
b a public holiday, special holiday, or bank holiday in Queensland;
1.1.2 “Contract Price” means the total price of the Works stated in Schedule Item 1, including the Fixed Price component and any allowances for Prime Cost Items, inclusive of GST, as adjusted under this Contract;
1.1.3 “Date for Practical Completion” means the date stated in Schedule Item 6 or any extended date pursuant to this Contract;
1.1.4 “Owner’s Authorised Representative” means the person notified in writing to the Contractor as the person empowered by the Owner to communicate with the Contractor, including giving instructions as to variations;
1.1.5 “Practical Completion” means the date upon which the Works are completed in accordance with the requirements of this Contract, apart from minor omissions or minor defects;
1.1.6 “Prime Cost Item” means any item noted in the Prime Cost Items Schedule provided to the Owner and as contemplated by clauses 4 and 5;
1.1.7 “Relevant Criteria” for materials means: a generally accepted practices or standards applied in the building industry for
the materials; or b specifications, instructions or recommendations of manufacturers or
suppliers of the materials;
1.1.8 “Starting Date” means the date referred to in Schedule Item 5;
1.1.9 “Site” means the Site described in Schedule Item 4;
1.1.10 “Week” referred to in Schedule Item 7 means 5 Business Days from the Starting
Date and every consecutive 5 Business Day period thereafter. The 5 Business Day period can start and end on any week day;
1.1.11 “Works” means the work described in Schedule Item 3 including any variations authorised under this Contract.
2 COOLING-OFF PERIOD
2.1 The Owner acknowledges receiving a copy of the QBCC Consumer Building Guide with the quote for the Works and before signing this Contract.
2.2 The Owner may withdraw from this Contract within 5 Business Days after the day on which the Owner receives from the Contractor a copy of this Contract signed by the Owner and the Contractor (the “Cooling-off Period”).
2.3 To withdraw from this Contract during the Cooling-off Period, the Owner must within the Cooling-off Period give the Contractor a written notice stating the Owner withdraws from this Contract under section 35 of Schedule 1B of the Queensland Building and Construction Commission Act 1991 (the “QBCC Act”).
2.4 If the Owner withdraws from this Contract pursuant to this clause, the Owner must pay to the Contractor an amount equal to any out-of-pocket expenses reasonably incurred by the Contractor before the Owner withdrew from this Contract, plus an additional $100.00.
3 WARRANTIES UNDER SCHEDULE 1B OF QBCC ACT
3.1 To the extent required by Schedule 1B of the QBCC Act, the Contractor warrants that:
3.1.1 the Works will be carried out in an appropriate and skilful way, with reasonable
care, skill and diligence;
3.1.2 all materials supplied will be of good quality and suitable for the purpose for which they are used having regard to the Relevant Criteria, and all materials used will be new unless this Contract expressly provides otherwise;
3.1.3 the Works will be carried out in accordance with all relevant laws and legal requirements;
3.1.4 the Works will be carried out in accordance with the Plan and Working Schedule;
3.1.5 any estimate of Prime Cost Items included in the Contract has been calculated with reasonable care and skill, having regard to all the information reasonably available when the Contract is entered into.
3.2 The Owner must pay the Contractor the Contract Price for the Works in accordance with this Contract.
4 PRICE
4.1 The parties agree that the Contract Price stated in Schedule Item 1 comprises the Fixed Price Component and the Prime Cost Items Component.
4.2 The Owner acknowledges receiving a Prime Cost Schedule prior to signing this Contract which contains a detailed description of bathroom fixtures to be installed including a breakdown of the cost estimates for each Prime Cost Item.
4.3 The Owner acknowledges that costs listed in the Prime Costs Schedule are estimates only. If the actual cost of providing a Prime Cost Item is more than the Contractor’s estimate, the Owner must pay the Contractor the increased cost within 5 Business Days of the Contractor
providing the Owner with a written request for payment under this clause.
4.4 If the actual cost of providing a Prime Cost Item is less than the Contractor’s estimate, the Contractor must deduct the difference from the Contract Price.
4.5 The Owner is responsible for selecting Prime Cost Items which are not selected prior to the signing of this Contract and must notify the Contractor in writing of that selection in sufficient time to ensure the performance of the Works is not delayed. The Contractor is not liable for
any damages as a result of a delay to the Works caused by the Owner’s failure to comply with
this clause.
4.6 The Owner may delegate the responsibility for selecting the Prime Cost Items under clause
4.5 to the Contractor. The owner indemnifies and releases the Contractor from all liability, to the extent permitted by law, with respect to any Prime Cost Items selected by the Contractor under this clause.
4.7 The Contractor will not charge a margin on Prime Cost Items.
5 PAYMENT
5.1 The Owner must pay the Contractor the Contract Price for the Works calculated and adjusted as provided by this Contract in accordance with the following provisions:
5.1.1 The Owner must pay the Contractor the Deposit stated in Schedule Item 2 upon the signing of this Contract.
5.1.2 The Owner must pay the Contractor the Progress Payments on the dates set out in Schedule Item 7, subject to the following adjustments: a an adjustment for any Prime Cost Item incorporated in the Works to that date, and not included in a previous Progress Payment, such adjustment being an increase or decrease to the relevant stage payment as set out in Schedule Item 7 depending on whether the final cost of the Prime Cost Item is more or less than the amount allowed and stated in the Prime Cost Items Schedule; and b an increase to the relevant Progress Payment in respect to an amount payable under a Variation, where the work the subject of the Variation, has been completed and for which payment has not previously been made.
5.1.3 Except in regard to the Progress Payment for the Practical Completion Stage payable in accordance with clause 11, the Owner must pay the Contractor the Progress Payment within 2 Business Days of receipt of the relevant Progress
Claim.
5.1.4 The Owner must pay the Contractor interest on overdue payments at 10% per year.
6 INSURANCE OBLIGATIONS
6.1 The Contractor must, at its cost, effect and maintain for the duration of this Contract the following insurances:
6.1.1 all insurances required to comply with the Workers’ Compensation and Rehabilitation Act 2003;
6.1.2 Queensland Home Warranty Scheme cover (if required for the Works); and
6.1.3 Contract Works insurance for an amount not less than the Contract Price and Public Liability insurance for not less than 5 million dollars.
6.2 The Owner must, at its cost, effect and maintain Public Liability and Home and Contents insurances for the duration of this Contract.
7 SITE ACCESS
7.1.1 The Owner gives the Contractor a licence to access the Site sufficient to enable the Contractor to commence and carry out Works from the Starting Date until the final Progress Payment has been made under clause 11.2.
7.1.2 The Owner or the Owner’s Authorised Representative must not unreasonably interfere with the performance of the Works when at the Site.
7.1.3 The Contractor is entitled to claim for a Variation increasing the Contract Price resulting from delay caused by the Owner or the Owner’s Authorised Representative unreasonably interfering with the performance of the Works.
8 COMMUNICATION BETWEEN OWNER AND CONTRACTOR
8.1 The Owner or the Owner’s Authorised Representative must communicate and deal with the Contractor personally or with the Contractor’s Authorised Representative. The Owner must not give directions to the Contractor’s employees or subcontractors or rely on information provided by them.
8.2 The Contractor is entitled to claim for a Variation increasing the Contract Price resulting from delay or variation caused by the Owner or the Owner’s Authorised Representative breaching clause 8.1.
9 COMMENCEMENT AND PERFORMANCE OF THE WORKS
9.1 The Works may be varied by way of an increase, decrease or substitution of work under this Contract provided that, before work commences and before any additional payment is sought, the details of the variation are put in writing in the Variation Form attached to this Contract.
9.2 Within 10 Business Days after the date on which work under this Contract commences on Site, the Contractor must give a written notice to the Owner stating the date on which work under this Contract commenced on Site and the Date for Practical Completion.
9.3 The Contractor may, in its sole discretion, assign this Contract or the Works without the prior written consent of the Owner.
9.4 The Contractor may, in its sole discretion, subcontract the Works to appropriately licensed tradespersons.
10 VARIATIONS
10.1 The Works may be varied by way of an increase, decrease or substitution of work (“Variation Work”) under this Contract provided that, before Variation Work commences and before any additional payment is sought, the details of the variation are put in writing in the Variation
Form attached to this Contract.
10.2 Any increase in the Contract Price resulting from the variation is not payable before the Variation Work has been completed.
10.3 The Contractor is entitled to additional payment for Variation Work requested by the Contractor if the Variation Work is necessary because of circumstances that are beyond the reasonable control of, and could not have been reasonably foreseen by, the Contractor when
the Contract was signed, for example, Variation Work including but not limited to:
10.3.1 the removal of asbestos and subsequent rectification work;
10.3.2 white ant damage; or
10.3.3 sub surface or hidden water damage including but not limited to rotten timbers.
11 PRACTICAL COMPLETION
11.1 The Contractor will notify the Owner as soon as the Works have reached Practical Completion.
11.2 The Owner or the Owner’s Authorised Representative will inspect the Works and if satisfied the Works have reached Practical Completion, the Owner must immediately pay the Contractor the final Progress Payment due under the Progress Payment Schedule.
11.3 If the Owner considers the Works have not reached Practical Completion, the Owner must give the Contractor written notice of those matters which are required to be done for the Works to reach Practical Completion. The Contractor must carry out the necessary works to
reach Practical Completion after completion of which the Owner must immediately pay the Contractor the final Progress Payment due under the Progress Payment Schedule.
12 TIME FOR PRACTICAL COMPLETION
12.1 The Contractor must achieve Practical Completion of the Works by the Date for Practical Completion stated in or calculated in accordance with Schedule Item 6 or any extended date under clause 13.
12.2 The Owner is not entitled to claim liquidated damages if the Contractor fails to achieve Practical Completion of the Works by the Date for Practical Completion.
13 EXTENSION OF TIME FOR PRACTICAL COMPLETION
13.1 The Contractor is entitled to an extension of the Date for Practical Completion if one or more of the following causes of delay prevents the Contractor from achieving Practical Completion by the Date for Practical Completion:
13.1.1 a variation under clause 10; or
13.1.2 a delay caused by the Owner or the Owner’s Authorised Representative; or
13.1.3 another cause of delay which is not reasonably foreseeable and beyond the reasonable control of the Contractor.
13.2 The Contractor must notify the Owner in writing as soon as the Contractor becomes aware of the cause and extent of the delay.
13.3 The notice in clause 13.2 must include:
13.3.1 the cause of the delay; and
13.3.2 the revised Date for Practical Completion.
13.4 Upon receipt of the above notice, the Owner must within 5 Business Days approve the revised Date for Practical Completion in writing to the Contractor.
13.5 The Contractor is entitled to damages arising from the delay or failure by the Owner to approve the revised Date for Practical Completion.
13.6 The Contractor must take all reasonable steps to lessen the effect and duration of any delay.
14 DEFECTS AFTER COMPLETION
14.1 The Contractor must make good defects or omissions in Works which become apparent to the Owner within 12 months of the Date of Practical Completion.
14.2 If there are any such defects or omissions, the Owner must, as soon as practicable after becoming aware of the defects or omissions, give the Contractor written notice to make good such defects or omissions and must give the Contractor reasonable access to the Site for that
purpose.
14.3 Subject to reasonable access being provided, the Contractor must within 28 calendar days of the notice being given rectify any defects or omissions notified to the Contractor under this clause.
15 TERMINATION AFTER WRITTEN NOTICE
15.1 If a party is in substantial breach of this Contract, the other party may terminate this Contract if:
15.1.1 It provides written notice to the party in breach of this Contract identifying and describing the breach and stating the intention of the party giving notice to terminate the Contract if the breach is not remedied within 5 Business Days from
the giving of the notice; and
15.1.2 the breach is not remedied.
15.2 Substantial breach by the Owner includes, but is not limited to:
15.2.1 failing to pay any money due and owing to the Contractor within 5 Business Days after the due date for payment; or
15.2.2 substantially or persistently obstructing the Contractor in the performance of the Works.
15.3 Substantial breach by the Contractor includes, but is not limited to:
15.3.1 failing to provide materials which comply with this Contract;
15.3.2 unreasonably failing to replace or remedy defective work or materials;
15.3.3 unreasonably failing to perform the Works diligently or unreasonably delaying, suspending or failing to maintain reasonable progress;
15.3.4 failing to effect or maintain any insurance required by this Contract; or
15.3.5 failing to hold the current, active and appropriate licence required to perform the Works.
15.4 The party terminating this Contract under this clause may recover from the party in breach all damages, loss, cost or expense occasioned to the party so terminating by or in connection with the breach or that termination.
15.5 The Owner does not have a right to off-set any claim for damages, loss, cost or expenses against any Progress Payment which is due and payable.
15.6 The right to terminate under this clause is in addition to any other powers, rights or remedies the terminating party may have.
16 DISPUTE RESOLUTION
16.1 If a dispute under this Contract arises between the parties, either party may give the other party written notice of the dispute, adequately identifying and providing details of the dispute.
16.2 If the dispute is not resolved within 10 Business Days of the receipt of the notice of dispute, either party may refer the matter to a dispute resolution process administered by the Queensland Building and Construction Commission.
16.3 A party will not commence any proceedings in respect of the dispute in any court or tribunal of competent jurisdiction until the dispute resolution process referred to in the above clause is at an end.
17 ENTIRE AGREEMENT
17.1 This Contract constitutes the entire agreement of the parties, and supersedes all prior negotiations, contracts, arrangements, understandings and/or agreements (between the parties to this Contract) in connection with the subject matter of this Contract.
18 GOVERNING LAW AND JURISDICTION
18.1 This Contract is governed by the laws of the State of Queensland, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of that State and the Federal Court of Australia (and their appellate Courts).
19 NO WAIVER
19.1 The failure of a party at any time to require full or partial performance of any provision of this Contract does not affect in any way the full right of that party to require that subsequent performance.
19.2 The waiver by any party of a breach of a provision of this Contract is not deemed a waiver of all or part of that provision or of any other provision or of the right of that party to avail itself of its rights subsequently.
19.3 Any waiver of a breach of this Contract must be in writing signed by the party granting the waiver and is effective only to the extent specifically set out in that waiver.
20 NOTICES
20.1 A notice required or authorised to be given or served upon a party under this Contract must be in writing and must be given or served by electronic mail, prepaid post or handed to that party at their usual address.
20.2 Notices may be given to or by a lawyer on behalf of a party.
20.3 A notice is deemed to have been given or served on the party to whom it was sent:
20.3.1 in the case of hand delivery, upon delivery;
20.3.2 in the case of prepaid post, in the ordinary course of the post; and
20.3.3 in the case of electronic mail, at the time of dispatch (provided within a reasonable time after dispatch the sender has no notice of any error or delay in receipt by recipient).
21 SEVERABILITY
21.1 The parties acknowledge and agree that:
21.1.1 all the provisions of this Contract are reasonable in all the circumstances and that each provision is and is deemed to be severable and independent; and
21.1.2 if all or any part of any provision is judged invalid or unenforceable in all the circumstances, it may be construed (or deleted if necessary) so as to be valid and enforceable to the greatest extent possible and does not affect the validity or enforceability of the remaining provisions.
22 COUNTERPARTS
22.1 This Contract may be executed in any number of counterparts and communication of the fact of execution to the other parties may be made by sending evidence of execution by fax or electronic mail.