House Contracts Guarantee Amendment Act

Document Sample
House Contracts Guarantee Amendment Act Powered By Docstoc
					                 PARLIAMENT OF VICTORIA

House Contracts Guarantee (Amendment) Act 2005
                                  Act No.


                      TABLE OF PROVISIONS
Clause                                                                  Page

PART 1—PRELIMINARY                                                         2
  1.     Purposes                                                          2
  2.     Commencement                                                      2
  3.     Principal Act                                                     3

PART 2—AMENDMENTS TO HOUSE CONTRACTS
GUARANTEE ACT 1987                                                         4
  4.     Definitions                                                       4
  5.     New sections 11A and 11B inserted                                 5
         11A. State to become liable for guarantees                        5
         11B. VMIA to be responsible for the Housing Guarantee
                  Claims Fund and claims                                   5
  6.     Liability in legal proceedings                                    6
  7.     New section 13 substituted                                        7
         13.      Procedure for resolving claims                           7
  8.     Claims                                                            9
  9.     Costs                                                             9
  10.    Appeals                                                          10
  11.    Discretionary payments                                           11
  12.    Application of payments                                          11
  13.    New Part 2A inserted                                             12
         PART 2A—HOUSING GUARANTEE CLAIMS FUND                            12
         17B.     Housing Guarantee Claims Fund                           12
         17C.     What comprises the Housing Guarantee Claims Fund?       12
         17D.     Payments out of the Housing Guarantee Claims Fund       13
         17E.     Powers of VMIA in relation to the Housing Guarantee
                  Claims Fund                                             14
         17F.     Report to Minister                                      14
         17G.     Auditor-General to audit financial staements of
                  Housing Guarantee Claims Fund                           15
         17H.     Annual report                                           15
         17I.     Remaining funds to be paid into Domestic Builders
                  Fund                                                    16




551274B.I2-6/5/2005                   i        BILL LA CIRCULATION 6/5/2005
Clause                                                                      Page

  14.    Part 4 heading substituted                                           16
  15.    Sections 22 to 24 repealed                                           16
  16.    References to the approved guarantor substituted                     16
  17.    Section 25A repealed                                                 18
  18.    False representations                                                18
  19.    Definition repealed                                                  18
  20.    References to HGFL substituted                                       18
  21.    Procedure for claims                                                 19
  22.    Further references to HGFL substituted                               19
  23.    New section 49 substituted                                           20
         49.      Remaining funds to be paid into Consolidated Fund           20
  24.    New section 50 substituted                                           20
         50.      Report to Minister                                          20
  25.    Audit of financial statements                                        20
  26.    New section 52 substituted                                           21
         52.      Annual report                                               21
  27.    Entering into arrangements and agreements with liquidator of
         HIH                                                                  21
  28.    New Part 7 inserted                                                  21
         PART 7—TRANSITIONAL                                                  21
         Division 1—Transfer of Property, Rights and Liabilities of
         HGFL                                                                 21
         57.      Definitions                                                 21
         58.      State to take over responsibility for guarantees            22
         59.      VMIA to be substituted as party to proceedings              23
         60.      Construction of instruments                                 23
         61.      Taxes                                                       24
         62.      Transfer of staff                                           24
         63.      Evidence                                                    25
         64.      Validity of things done under this Division                 25
         65.      Operation of provisions not subject to review               26
         Division 2—Role of VMIA in relation to guarantees                    26
         66.      Actions of continuing nature in relation to guarantees      26
         Division 3—Role of VMIA in relation to indemnities                   27
         67.      Actions of continuing nature in relation to indemnities     27
         68.      References to HGFL in any arrangement or agreement
                  under section 53                                            27
         Division 4—Reporting by HGFL                                         28
         69.      Final annual report by HGFL                                 28




551274B.I2-6/5/2005                    ii         BILL LA CIRCULATION 6/5/2005
Clause                                                            Page

PART 3—AMENDMENTS TO OTHER ACTS                                     29
  29.    Amendment to Building Act 1993                             29
  30.    Amendment to Domestic Building Contracts Act 1995          29
  31.    Amendments to Victorian Managed Insurance Authority
         Act 1996                                                   30
                         ═══════════════

ENDNOTES                                                            31




551274B.I2-6/5/2005              iii       BILL LA CIRCULATION 6/5/2005
                 PARLIAMENT OF VICTORIA
Initiated in Assembly 4 May 2005




                          A BILL

 to amend the House Contracts Guarantee Act 1987 to establish the
    Housing Guarantee Claims Fund, to confer responsibility on the
Victorian Managed Insurance Authority for the administration of that
Fund and the Domestic Building (HIH) Indemnity Fund and claims on
   those Funds, to provide for the transfer of the property, rights and
 liabilities of Housing Guarantee Fund Limited to the State, to amend
  the Victorian Managed Insurance Authority Act 1996 and other
                      Acts and for other purposes.


             House Contracts Guarantee
              (Amendment) Act 2005




The Parliament of Victoria enacts as follows:




551274B.I2-6/5/2005                1        BILL LA CIRCULATION 6/5/2005
                    House Contracts Guarantee (Amendment) Act 2005
                                       Act No.
                                          Part 1—Preliminary
     s. 1



                                     PART 1—PRELIMINARY

                   1. Purposes
                              The purposes of this Act are—
                                  (a) to amend the House Contracts Guarantee
5                                     Act 1987—
                                       (i) to establish the Housing Guarantee
                                           Claims Fund; and
                                      (ii) to confer on the Victorian Managed
                                           Insurance Authority responsibility for
10                                         the administration of the Housing
                                           Guarantee Claims Fund and the
                                           Domestic Building (HIH) Indemnity
                                           Fund and claims on those Funds; and
                                      (iii) to provide for the transfer of the
15                                          property, rights and liabilities of
                                            Housing Guarantee Fund Limited to the
                                            State; and
                                  (b) to make consequential amendments to—
                                       (i) the Victorian Managed Insurance
20                                         Authority Act 1996; and
                                      (ii) the Building Act 1993; and
                                      (iii) the Domestic Building Contracts Act
                                            1995.
                   2. Commencement
25                       (1) Subject to sub-section (2), this Act comes into
                             operation on a day to be proclaimed.
                         (2) If this Act does not come into operation before
                             1 July 2007, it comes into operation on that day.




            551274B.I2-6/5/2005                   2        BILL LA CIRCULATION 6/5/2005
        House Contracts Guarantee (Amendment) Act 2005
                           Act No.
                           Part 1—Preliminary
                                                                             s. 3


       3. Principal Act
                  In this Act the House Contracts Guarantee Act            See:
                                                                           Act No.
                  1987 is called the Principal Act.                        44/1987.
                                                                           Reprint No. 4
                                                                           as at
                                                                           8 June 2001
                                                                           and
                                                                           amending
                                                                           Act Nos
                                                                           44/2001,
                                                                           9/2002,
                                                                           11/2002,
                                                                           25/2002 and
                                                                           108/2004.
                                                                           LawToday:
                                                                           www.dms.
                                                                           dpc.vic.
                                                                           gov.au

                        __________________




551274B.I2-6/5/2005                3        BILL LA CIRCULATION 6/5/2005
                    House Contracts Guarantee (Amendment) Act 2005
                                       Act No.
                    Part 2—Amendments to House Contracts Guarantee Act 1987
     s. 4



                  PART 2—AMENDMENTS TO HOUSE CONTRACTS
                           GUARANTEE ACT 1987

                   4. Definitions
                         (1) In section 3(1) of the Principal Act, insert the
5                            following definitions—
                              ' "appointed day" means the date of
                                   commencement of the House Contracts
                                   Guarantee (Amendment) Act 2005;
                              "HGFL" means Housing Guarantee Fund
10                               Limited A.C.N. 006 258 233;
                              "VMIA" means the Victorian Managed Insurance
                                 Authority established by the Victorian
                                 Managed Insurance Authority Act 1996.'.
                         (2) In section 3(1) of the Principal Act for the
15                           definition of "approved guarantor" substitute—
                              ' "approved guarantor" means HGFL;'.
                         (3) In section 3(1) of the Principal Act for the
                             definition of "claimant" substitute—
                              ' "claimant" means—
20                                  (a) except in Part 6, a person who has
                                        made a claim to HGFL or VMIA under
                                        this Act; and
                                    (b) in Part 6, a person who has lodged a
                                        claim with HGFL or VMIA under that
25                                      Part;'.
                         (4) After section 3(4) of the Principal Act insert—
                              "(5) A reference in this Act to a guarantee given
                                   under this Act does not include a reference to
                                   an indemnity given under Part 6.".




            551274B.I2-6/5/2005                4        BILL LA CIRCULATION 6/5/2005
             House Contracts Guarantee (Amendment) Act 2005
                                Act No.
             Part 2—Amendments to House Contracts Guarantee Act 1987
                                                                                    s. 5


            5. New sections 11A and 11B inserted
                       After section 11 of the Principal Act insert—
                    "11A. State to become liable for guarantees
                               Despite anything to the contrary in this Part,
5                              on the appointed day—
                                (a) the State becomes liable under any
                                    guarantee given by HGFL under this
                                    Act to the extent of HGFL's liability
                                    under that guarantee; and
10                              (b) HGFL ceases to be liable under that
                                    guarantee.
                      11B. VMIA to be responsible for the Housing
                           Guarantee Claims Fund and claims
                           (1) VMIA is responsible on and after the
15                             appointed day for the administration of—
                                (a) claims on guarantees given by HGFL or
                                    the State under this Act; and
                                (b) the Housing Guarantee Claims Fund.
                           (2) VMIA has any other functions conferred on
20                             it under this Part, Part 2A, Part 4 and Part 7.
                           (3) Without limiting its other powers, VMIA has
                               any powers necessary to carry out its
                               functions under this Part, Part 2A, Part 4 and
                               Part 7.
25                         (4) VMIA acts on behalf of the State in carrying
                               out its functions and exercising its powers
                               under or for the purposes of this Part,
                               Part 2A, Part 4 and Part 7.




     551274B.I2-6/5/2005                    5        BILL LA CIRCULATION 6/5/2005
                    House Contracts Guarantee (Amendment) Act 2005
                                       Act No.
                    Part 2—Amendments to House Contracts Guarantee Act 1987
     s. 6


                                  (5) No claim on a guarantee given by HGFL or
                                      the State under this Act can be made on the
                                      assets of VMIA and the assets of VMIA are
                                      not available for the payment of any amount
5                                     of claim, costs or expenses under such a
                                      guarantee.".
                   6. Liability in legal proceedings
                         (1) Insert the following heading to section 12 of the
                             Principal Act—
10                            "Liability in legal proceedings".
                         (2) In section 12(1) of the Principal Act for "the
                             approved guarantor" substitute "the State".
                         (3) For sections 12(2) and 12(3) of the Principal Act
                             substitute—
15                            "(2) Sub-section (1) applies only if—
                                       (a) the person who makes the claim—
                                            (i) notified the approved guarantor of
                                                the legal proceedings before the
                                                appointed day and within
20                                              3 months of the proceedings being
                                                commenced; or
                                            (ii) notified VMIA of the legal
                                                 proceedings on or after the
                                                 appointed day and within
25                                               3 months of the proceedings being
                                                 commenced; or
                                       (b) VMIA is not prejudiced in dealing with
                                           the claim by the failure of the claimant
                                           to give the required notice under
30                                         paragraph (a).




            551274B.I2-6/5/2005                   6        BILL LA CIRCULATION 6/5/2005
             House Contracts Guarantee (Amendment) Act 2005
                                Act No.
             Part 2—Amendments to House Contracts Guarantee Act 1987
                                                                                    s. 7


                           (3) Without limiting sub-section (2)(b), VMIA
                               can establish prejudice for the purposes of
                               that sub-section by establishing that—
                                (a) the State could have recovered any sum
5                                   payable by it in discharge of its liability
                                    had VMIA or the approved guarantor
                                    been notified of the proceedings within
                                    the required time but that it cannot
                                    make that recovery because of the
10                                  failure to give that notice within the
                                    required time; or
                                (b) the approved guarantor could have
                                    recovered any sum payable by it in
                                    discharge of its liability under this
15                                  section as in force before the appointed
                                    day had the approved guarantor been
                                    notified of the proceedings within the
                                    required time but that it could not make
                                    that recovery because of the failure to
20                                  give that notice within the required
                                    time.".
            7. New section 13 substituted
                       For section 13 of the Principal Act substitute—
                       "13. Procedure for resolving claims
25                         (1) Subject to this section, the procedures
                               approved under this section as in force
                               immediately before the appointed day for the
                               handling and resolution of claims apply
                               (with any necessary modifications) to the
30                             handling and resolution of claims by VMIA
                               under this Part.
                           (2) If—
                                (a) a claim has been made to the approved
                                    guarantor before the appointed day or
35                                  to VMIA on or after the appointed day
                                    for loss or damage; and


     551274B.I2-6/5/2005                   7         BILL LA CIRCULATION 6/5/2005
                    House Contracts Guarantee (Amendment) Act 2005
                                       Act No.
                    Part 2—Amendments to House Contracts Guarantee Act 1987
     s. 7


                                       (b) the claimant has also brought legal
                                           proceedings against the builder or
                                           supervisor involved in the claim—
                                     VMIA must proceed to make a decision in
5                                    respect of the claim if the matters in dispute
                                     in the legal proceedings do not include any
                                     matter to which the claim relates.
                                  (3) If—
                                       (a) the approved guarantor, before the
10                                         appointed day, or VMIA on or after the
                                           appointed day has made an offer in
                                           respect of a claim by a person for loss
                                           or damage; and
                                       (b) within 6 months after the offer was
15                                         made the offer has not been accepted or
                                           rejected—
                                     VMIA may refer the matter to the Tribunal
                                     and the Tribunal must treat the matter as if
                                     the claimant had not been satisfied with the
20                                   offer and had appealed to it under section 16.
                                  (4) VMIA may from time to time submit to the
                                      Minister for approval the procedures it
                                      proposes to adopt in the handling and
                                      resolution of claims under this Part.
25                                (5) VMIA may propose to adopt as part of its
                                      procedures—
                                       (a) the requirement that a claim be made in
                                           a particular way; and
                                       (b) the requirement that a claimant supply
30                                         to it a statutory declaration made by the
                                           claimant verifying any information
                                           supplied to VMIA by the claimant in
                                           respect of a claim.




            551274B.I2-6/5/2005                   8        BILL LA CIRCULATION 6/5/2005
             House Contracts Guarantee (Amendment) Act 2005
                                Act No.
             Part 2—Amendments to House Contracts Guarantee Act 1987
                                                                                   s. 8


                           (6) The Minister must consult with the Minister
                               administering the Victorian Managed
                               Insurance Authority Act 1996 before
                               approving the procedures.
5                          (7) The Minister may approve the procedures
                               with or without amendment.
                           (8) VMIA must adopt the procedures approved
                               by the Minister.
                           (9) A procedure does not take effect unless it has
10                             been approved by the Minister.".
            8. Claims
                  (1) In sections 14(1), 14(1A) and 14(2) of the
                      Principal Act, after "the approved guarantor"
                      insert "or VMIA".
15                (2) For section 14(3) of the Principal Act
                      substitute—
                       "(3) Sub-section (2) has no effect unless in a
                            particular case VMIA can establish that the
                            failure to notify the defect in accordance
20                          with that sub-section prejudiced VMIA in
                            dealing with the claim.".
                  (3) In section 14(4) of the Principal Act for "the
                      approved guarantor" substitute "VMIA".
            9. Costs
25                (1) In section 15 of the Principal Act—
                           (a) for "The approved guarantor" substitute
                               "VMIA"; and
                           (b) in paragraph (b) after "approved guarantor"
                               insert "or VMIA".




     551274B.I2-6/5/2005                   9        BILL LA CIRCULATION 6/5/2005
                     House Contracts Guarantee (Amendment) Act 2005
                                        Act No.
                     Part 2—Amendments to House Contracts Guarantee Act 1987
     s. 10


                          (2) At the end of section 15 of the Principal Act
                              insert—
                               "(2) This section does not apply if the costs
                                    referred to in sub-section (1) were
5                                   reimbursed before the appointed day.".
                  10. Appeals
                          (1) In section 16(1) of the Principal Act—
                                   (a) in paragraphs (a), (b), (ba), (c) and (f) after
                                       "the approved guarantor" (wherever
10                                     occurring) insert "or VMIA"; and
                                   (b) after "the approved guarantor" (where last
                                       occurring) insert "or VMIA".
                          (2) For section 16(2) of the Principal Act
                              substitute—
15                             "(2) If, within 3 months after making a claim for
                                    loss or damage, a claimant has not received
                                    notice from the approved guarantor or VMIA
                                    of its decision on the claim—
                                        (a) if that period ended before the
20                                          appointed day, the approved guarantor
                                            is to be treated as having made, on the
                                            last day of that period, a decision to
                                            accept liability for the claim; and
                                        (b) if the period ended on or after the
25                                          appointed day, VMIA is to be treated as
                                            having made, on the last day of that
                                            period, a decision to accept liability for
                                            the claim.".
                          (3) For section 16(4) of the Principal Act
30                            substitute—
                               "(4) VMIA may make an offer in respect of a
                                    claim if—
                                        (a) it has decided to accept a claim; or



             551274B.I2-6/5/2005                    10        BILL LA CIRCULATION 6/5/2005
             House Contracts Guarantee (Amendment) Act 2005
                                Act No.
             Part 2—Amendments to House Contracts Guarantee Act 1987
                                                                                    s. 11


                                (b) before the appointed day, the approved
                                    guarantor had decided to accept the
                                    claim.
                      (4A) Sub-section (4) applies whether or not a
5                          builder has appealed under sub-section
                           (1)(ba) or (c) or a supervisor has appealed
                           under sub-section (1)(f) in respect of the
                           decision.".
                  (4) In section 16(5) of the Principal Act after "the
10                    approved guarantor" insert "or VMIA".
                  (5) In section 16(6) of the Principal Act for "the
                      approved guarantor" substitute "VMIA".
          11. Discretionary payments
                  (1) In section 17(1) of the Principal Act—
15                         (a) for "the approved guarantor" substitute
                               "VMIA"; and
                           (b) after "in respect of a claim made to it" insert
                               "or the approved guarantor".
                  (2) Section 17(2) of the Principal Act is repealed.
20        12. Application of payments
                  (1) For section 17A(1) of the Principal Act
                      substitute—
                       "(1) If a claim relates to a failure to complete
                            building work or a defect in building work
25                          and that claim was accepted by the approved
                            guarantor before the appointed day or is
                            accepted by VMIA on or after the appointed
                            day, or is upheld on appeal, any payment
                            made by VMIA in respect of that claim may
30                          be made on the condition that it is applied for
                            the purpose of completion of that work or the
                            rectification of that defect.".




     551274B.I2-6/5/2005                   11        BILL LA CIRCULATION 6/5/2005
                     House Contracts Guarantee (Amendment) Act 2005
                                        Act No.
                     Part 2—Amendments to House Contracts Guarantee Act 1987
     s. 13


                          (2) In sections 17A(2) and 17A(3) of the Principal
                              Act for "The approved guarantor" substitute
                              "VMIA".
                          (3) In section 17A(4) for "the approved guarantor"
5                             (where twice occurring) substitute "VMIA".
                  13. New Part 2A inserted
                               After Part 2 of the Principal Act insert—

                                   "PART 2A—HOUSING GUARANTEE CLAIMS
                                                 FUND

10                            17B. Housing Guarantee Claims Fund
                                       There is to be established a Fund to be called
                                       the Housing Guarantee Claims Fund.
                              17C. What comprises the Housing Guarantee
                                   Claims Fund?
15                                 (1) All property vested in the State under
                                       section 58 forms part of the Housing
                                       Guarantee Claims Fund.
                                   (2) There must be paid into the Housing
                                       Guarantee Claims Fund—
20                                      (a) all money received from the disposal of
                                            any property in the Fund under section
                                            17E(4); and
                                        (b) any money appropriated by Parliament
                                            for the purposes of the Fund; and
25                                      (c) income from the investment of the
                                            Fund; and
                                        (d) all fees received by VMIA under
                                            section 25; and
                                        (e) all other money authorised or required
30                                          to be paid to the Fund by any person or
                                            body.



             551274B.I2-6/5/2005                   12       BILL LA CIRCULATION 6/5/2005
             House Contracts Guarantee (Amendment) Act 2005
                                Act No.
             Part 2—Amendments to House Contracts Guarantee Act 1987
                                                                                    s. 13


                      17D. Payments out of the Housing Guarantee
                           Claims Fund
                           (1) There may be paid out of the Housing
                               Guarantee Claims Fund at the direction of
5                              VMIA—
                                (a) any amount payable on a claim on a
                                    guarantee given under this Act; and
                                (b) any amount payable in respect of any
                                    liability that becomes a liability of the
10                                  State under section 58; and
                                (c) any amount paid by the State in respect
                                    of any liability that becomes a liability
                                    of the State under section 58; and
                                (d) the costs and expenses incurred in the
15                                  administration of the Fund and any
                                    claim on a guarantee given under this
                                    Act; and
                                (e) any amount determined by the Auditor-
                                    General to defray the reasonable costs
20                                  and expenses of an audit of the
                                    accounts of the Fund; and
                                (f) with the consent of the Minister, any
                                    amount required to meet the costs and
                                    expenses of and any liabilities arising
25                                  on the winding up of HGFL; and
                                (g) any other amount authorised by or
                                    under this or any other Act to be paid
                                    out of the Fund.
                           (2) All amounts paid out of the Fund under sub-
30                             section (1)(c) or (1)(e) must be paid into the
                               Consolidated Fund.
                           (3) All money and other property in the Fund is
                               an asset of the State.




     551274B.I2-6/5/2005                   13        BILL LA CIRCULATION 6/5/2005
                     House Contracts Guarantee (Amendment) Act 2005
                                        Act No.
                     Part 2—Amendments to House Contracts Guarantee Act 1987
     s. 13


                              17E. Powers of VMIA in relation to the
                                   Housing Guarantee Claims Fund
                                   (1) VMIA may invest any part of the Housing
                                       Guarantee Claims Fund that is not
5                                      immediately required for the purposes of the
                                       Fund in any manner approved by the
                                       Treasurer.
                                   (2) Despite sub-section (1), VMIA may continue
                                       any investment of funds of HGFL existing
10                                     immediately before the appointed day and
                                       forming part of the Housing Guarantee
                                       Claims Fund as if the investment had been
                                       made by VMIA.
                                   (3) VMIA may use any property in the Fund for
15                                     any purpose related to the administration of
                                       the Fund.
                                   (4) VMIA may dispose of any property (other
                                       than money) in the Fund.
                                   (5) VMIA may enter into any agreement with
20                                     any person in relation to the settlement of
                                       any liability of the State or to the State
                                       transferred under section 58.
                               17F. Report to Minister
                                       VMIA must from time to time at the
25                                     direction of the Minister report to the
                                       Minister in the manner required by the
                                       Minister on its administration of—
                                        (a) claims on guarantees given by HGFL or
                                            the State under this Act; and
30                                      (b) the Housing Guarantee Claims Fund.




             551274B.I2-6/5/2005                   14       BILL LA CIRCULATION 6/5/2005
             House Contracts Guarantee (Amendment) Act 2005
                                Act No.
             Part 2—Amendments to House Contracts Guarantee Act 1987
                                                                                   s. 13


                      17G. Auditor-General to audit financial
                           staements of Housing Guarantee Claims
                           Fund
                           (1) The financial statements of the Housing
5                              Guarantee Claims Fund must be audited
                               annually by the Auditor-General.
                           (2) The Auditor-General has in respect of the
                               audit all the powers conferred on the
                               Auditor-General by any law relating to the
10                             audit of the Public Account.
                           (3) The Auditor-General must submit a report of
                               the audit to the Minister.
                           (4) The Minister must cause a copy of any audit
                               report to be laid before each House of
15                             Parliament within 7 sitting days of that
                               House after it is received by the Minister
                               under sub-section (3).
                      17H. Annual report
                               VMIA must include in its annual report for a
20                             financial year under Part 7 of the Financial
                               Management Act 1994—
                                (a) details of its administration of—
                                      (i) claims on guarantees given by
                                          HGFL or the State under this Act;
25                                        and
                                     (ii) the Housing Guarantee Claims
                                          Fund; and
                                (b) the audited financial statements of the
                                    Housing Guarantee Claims Fund.




     551274B.I2-6/5/2005                  15        BILL LA CIRCULATION 6/5/2005
                     House Contracts Guarantee (Amendment) Act 2005
                                        Act No.
                     Part 2—Amendments to House Contracts Guarantee Act 1987
     s. 14


                               17I. Remaining funds to be paid into Domestic
                                    Builders Fund
                                   (1) If the Minister is satisfied that all claims on a
                                       guarantee given under this Act have been
5                                      dealt with and that no further claim can be
                                       made on a guarantee given under this Act,
                                       the Minister may by notice published in the
                                       Government Gazette, close the Housing
                                       Guarantee Claims Fund.
10                                 (2) On the publication of the notice under sub-
                                       section (1) all money standing to the credit
                                       of the Housing Guarantee Claims Fund must
                                       be paid into the Domestic Builders Fund
                                       established under the Domestic Building
15                                     Contracts Act 1995.".
                  14. Part 4 heading substituted
                               For the heading to Part 4 of the Principal Act
                               substitute—

                                            "PART 4—THE REGISTER".

20                15. Sections 22 to 24 repealed
                               Sections 22, 22A, 23 and 24 of the Principal Act
                               are repealed.
                  16. References to the approved guarantor substituted
                          (1) Insert the following heading to section 25 of the
25                            Principal Act—
                               "Registers to be kept by VMIA".
                          (2) For section 25(1) of the Principal Act
                              substitute—
                               "(1) VMIA must, in the form required by the
30                                  Minister, keep—
                                        (a) a register of builders and supervisors
                                            approved by the approved guarantor;
                                            and


             551274B.I2-6/5/2005                    16        BILL LA CIRCULATION 6/5/2005
             House Contracts Guarantee (Amendment) Act 2005
                                Act No.
             Part 2—Amendments to House Contracts Guarantee Act 1987
                                                                                   s. 16


                                (b) a register of work in relation to which a
                                    guarantee given by the approved
                                    guarantor under this Act is in force and
                                    of which the approved guarantor has
5                                   received notice under section 24 of this
                                    Act or section 27(3) of the Building
                                    Act 1993 or of which the approved
                                    guarantor otherwise had actual notice
                                    before the appointed day.".
10                (3) For section 25(2) of the Principal Act
                      substitute—
                       "(2) VMIA must permit a person to inspect a
                            register required to be kept by it under sub-
                            section (1) at any time during ordinary office
15                          hours at its offices.".
                  (4) In section 25(3) of the Principal Act—
                           (a) for "The approved guarantor" substitute
                               "VMIA"; and
                           (b) omit "signed by a person authorised by the
20                             approved guarantor in that behalf"; and
                           (c) in paragraph (c) after "approved guarantor"
                               insert "or the State".
                  (5) For sections 25(4), 25(5) and 25(6) of the
                      Principal Act substitute—
25                     "(4) VMIA must, at the request of the applicant
                            for the certificate, include in a certificate
                            issued under sub-section (3) a statement as to
                            whether or not the approved guarantor or
                            VMIA has received a claim under a
30                          guarantee in force in relation to the building
                            to which the certificate relates.




     551274B.I2-6/5/2005                  17        BILL LA CIRCULATION 6/5/2005
                     House Contracts Guarantee (Amendment) Act 2005
                                        Act No.
                     Part 2—Amendments to House Contracts Guarantee Act 1987
     s. 17


                                   (5) A document purporting to be a register or
                                       part of a register required to be kept by
                                       VMIA under sub-section (1) and purporting
                                       to be certified by VMIA as that register or
5                                      part of that register is admissible in evidence
                                       in any proceedings for an offence against this
                                       Act and, in the absence of evidence to the
                                       contrary, is proof of the facts and matters
                                       contained in it.
10                                 (6) A certificate purporting to be issued by
                                       VMIA under sub-section (3) or by the
                                       approved guarantor under sub-section (3) as
                                       in force immediately before the appointed
                                       day, is admissible in evidence in any
15                                     proceedings for an offence against this Act
                                       and, in the absence of evidence to the
                                       contrary, is proof of the facts and matters
                                       contained in it.".
                  17. Section 25A repealed
20                             Section 25A of the Principal Act is repealed.
                  18. False representations
                               In section 27(1)(d) of the Principal Act for
                               "approved guarantor" substitute "VMIA".
                  19. Definition repealed
25                             In section 35(1) of the Principal Act, the definition
                               of "HGFL" is repealed.
                  20. References to HGFL substituted
                          (1) In the heading to section 39 of the Principal Act,
                              for "HGFL" substitute "VMIA".
30                        (2) In sections 39 and 40 of the Principal Act, for
                              "HGFL" (wherever occurring) substitute
                              "VMIA".




             551274B.I2-6/5/2005                   18       BILL LA CIRCULATION 6/5/2005
             House Contracts Guarantee (Amendment) Act 2005
                                Act No.
             Part 2—Amendments to House Contracts Guarantee Act 1987
                                                                                s. 21


          21. Procedure for claims
                  (1) In section 41(1) of the Principal Act, for "HGFL"
                      substitute "VMIA".
                  (2) Sections 41(2) and 41(7) of the Principal Act are
5                     repealed.
                  (3) In sections 41(3) and 41(5) of the Principal Act,
                      for "HGFL" (wherever occurring) substitute
                      "VMIA".
                  (4) After section 41(3) of the Principal Act insert—
10                   "(3A) The Minister must consult with the Minister
                           administering the Victorian Managed
                           Insurance Authority Act 1996 before
                           approving the procedures.".
          22. Further references to HGFL substituted
15                (1) In section 42 of the Principal Act, for "HGFL"
                      (wherever occurring) substitute "VMIA".
                  (2) In section 43(1) of the Principal Act for "HGFL"
                      (wherever occurring) substitute "VMIA".
                  (3) In section 43(2) of the Principal Act for "HGFL"
20                    substitute "the State".
                  (4) In the heading to section 44 of the Principal Act,
                      for "HGFL" substitute "VMIA".
                  (5) In sections 44, 47 and 48 of the Principal Act, for
                      "HGFL" (wherever occurring) substitute
25                    "VMIA".




     551274B.I2-6/5/2005               19        BILL LA CIRCULATION 6/5/2005
                     House Contracts Guarantee (Amendment) Act 2005
                                        Act No.
                     Part 2—Amendments to House Contracts Guarantee Act 1987
     s. 23


                  23. New section 49 substituted
                               For section 49 of the Principal Act substitute—
                               "49. Remaining funds to be paid into
                                    Consolidated Fund
5                                  (1) If the Minister is satisfied that all claims
                                       against the Domestic Building (HIH)
                                       Indemnity Fund have been dealt with and
                                       that no further claim can be made under this
                                       Part, the Minister may, by notice published
10                                     in the Government Gazette, close the Fund.
                                   (2) On the publication of the notice under sub-
                                       section (1), all money standing to the credit
                                       of the Domestic Building (HIH) Indemnity
                                       Fund must be paid into the Consolidated
15                                     Fund.".
                  24. New section 50 substituted
                               For section 50 of the Principal Act substitute—
                               "50. Report to Minister
                                       VMIA must from time to time at the
20                                     direction of the Minister report to the
                                       Minister in the manner required by the
                                       Minister on its administration of—
                                        (a) the indemnity scheme established under
                                            this Part; and
25                                      (b) the Domestic Building (HIH)
                                            Indemnity Fund.".
                  25. Audit of financial statements
                          (1) In the heading to section 51 of the Principal Act
                              for "accounts" substitute "financial
30                            statements".
                          (2) In section 51(1) of the Principal Act for
                              "accounts" substitute "financial statements".
                          (3) Section 51 (2) of the Principal Act is repealed.


             551274B.I2-6/5/2005                   20       BILL LA CIRCULATION 6/5/2005
             House Contracts Guarantee (Amendment) Act 2005
                                Act No.
             Part 2—Amendments to House Contracts Guarantee Act 1987
                                                                                   s. 26


          26. New section 52 substituted
                       For section 52 of the Principal Act substitute—
                       "52. Annual report
                               VMIA must include in its annual report for a
5                              financial year under Part 7 of the Financial
                               Management Act 1994—
                                (a) details of its administration of—
                                      (i) the indemnity scheme established
                                          under this Part; and
10                                   (ii) the Domestic Building (HIH)
                                          Indemnity Fund; and
                                (b) the audited financial statements of the
                                    Domestic Building (HIH) Indemnity
                                    Fund.".
15        27. Entering into arrangements and agreements with
              liquidator of HIH
                  (1) In the heading to section 53 of the Principal Act,
                      for "HGFL" substitute "VMIA".
                  (2) In section 53 of the Principal Act for "HGFL"
20                    substitute "VMIA".
          28. New Part 7 inserted
                       After Part 6 of the Principal Act insert—

                                    'PART 7—TRANSITIONAL

                           Division 1—Transfer of Property, Rights and
25                                    Liabilities of HGFL

                           57. Definitions
                               In this Division—
                               "instrument" includes a document and an
                                    oral agreement;



     551274B.I2-6/5/2005                     21     BILL LA CIRCULATION 6/5/2005
                     House Contracts Guarantee (Amendment) Act 2005
                                        Act No.
                     Part 2—Amendments to House Contracts Guarantee Act 1987
     s. 28


                                       "liabilities" includes all liabilities, duties
                                            and obligations, whether actual,
                                            contingent or prospective;
                                       "property" means a legal or equitable estate
5                                          or interest (whether present or future
                                           and whether vested or contingent) in
                                           real or personal property of any
                                           description;
                                       "rights" means all rights, powers, privileges
10                                          and immunities, whether actual,
                                            contingent or prospective;
                                       "transferred HGFL employee" means a
                                            person who is to be taken under this
                                            Division to be employed by VMIA on
15                                          the appointed day.
                                   58. State to take over responsibility for
                                       guarantees
                                   (1) On the appointed day—
                                        (a) all property and rights of HGFL vest in
20                                          the State; and
                                        (b) all liabilities of HGFL become
                                            liabilities of the State; and
                                        (c) the State becomes the successor in law
                                            of HGFL in relation to that property
25                                          and those rights and liabilities.
                                   (2) For the purposes of this Division, the
                                       property of HGFL includes—
                                        (a) all assets of HGFL; and
                                        (b) any register kept by the approved
30                                          guarantor under section 25 as in force
                                            immediately before the appointed day.




             551274B.I2-6/5/2005                   22         BILL LA CIRCULATION 6/5/2005
             House Contracts Guarantee (Amendment) Act 2005
                                Act No.
             Part 2—Amendments to House Contracts Guarantee Act 1987
                                                                                   s. 28


                           59. VMIA to be substituted as party to
                               proceedings
                               If, immediately before the appointed day,
                               proceedings to which HGFL was a party
5                              were pending or existing in any court or
                               tribunal, then, on and after the appointed
                               day, VMIA, on behalf of the State, is
                               substituted as a party to the proceedings and
                               has the same rights in the proceedings as
10                             HGFL had.
                           60. Construction of instruments
                           (1) Each existing instrument that relates to the
                               property, rights or liabilities of HGFL has
                               effect and continues to have effect according
15                             to its tenor on and after the appointed day as
                               if a reference in the instrument to HGFL
                               were a reference to the State.
                           (2) In this section "existing instrument" means
                               an instrument existing immediately before
20                             the appointed day—
                                (a) to which HGFL was a party; or
                                (b) that was given to or in favour of HGFL;
                                    or
                                (c) that refers to HGFL; or
25                              (d) under which—
                                      (i) money is, or may become, payable
                                          to or by HGFL; or
                                     (ii) other property is to be, or may
                                          become liable to be, transferred to
30                                        or by HGFL.




     551274B.I2-6/5/2005                   23       BILL LA CIRCULATION 6/5/2005
                     House Contracts Guarantee (Amendment) Act 2005
                                        Act No.
                     Part 2—Amendments to House Contracts Guarantee Act 1987
     s. 28


                                   61. Taxes
                                       No stamp duty or other tax is chargeable
                                       under any Act in respect of anything done
                                       under this Division or in respect of any act or
5                                      transaction connected with or necessary to be
                                       done because of this Division, including a
                                       transaction entered into or an instrument
                                       made, executed or lodged.
                                   62. Transfer of staff
10                                 (1) A person who immediately before the
                                       appointed day was employed by HGFL
                                       must, on the appointed day, be taken to be
                                       employed by VMIA on the same terms and
                                       conditions and with the same accrued and
15                                     accruing entitlements as those that applied to
                                       that person as an employee of HGFL
                                       immediately before the appointed day.
                                   (2) The service of a transferred HGFL employee
                                       as an employee of VMIA is to be taken for
20                                     all purposes to be continuous with the
                                       service of that person, immediately before
                                       the appointed day, with HGFL.
                                   (3) A transferred HGFL employee is not entitled
                                       to receive any payment or other benefit by
25                                     reason of having ceased to be an employee
                                       of HGFL because of this Division.
                                   (4) Nothing in this section prevents—
                                        (a) any of the terms and conditions of
                                            employment of a transferred HGFL
30                                          employee from being altered by or
                                            under any law, award or agreement
                                            with effect from any time after the
                                            appointed day; or




             551274B.I2-6/5/2005                   24       BILL LA CIRCULATION 6/5/2005
             House Contracts Guarantee (Amendment) Act 2005
                                Act No.
             Part 2—Amendments to House Contracts Guarantee Act 1987
                                                                                   s. 28


                                (b) a transferred HGFL employee from
                                    resigning, or the termination of a
                                    person's employment, at any time after
                                    the appointed day in accordance with
5                                   the then existing terms and conditions
                                    of his or her employment by VMIA.
                           63. Evidence
                           (1) Documentary or other evidence that would
                               have been admissible for or against the
10                             interests of HGFL before the appointed day
                               is admissible for or against the interests of
                               the State on or after the appointed day.
                           (2) Division 3A of Part III of the Evidence Act
                               1958 continues to apply with respect to the
15                             books of account of HGFL and to entries
                               made in those books of account before the
                               appointed day whether or not they relate to
                               property, rights or liabilities of HGFL vested
                               in the State under this Division.
20                         64. Validity of things done under this Division
                               Nothing effected by this Division or suffered
                               under this Division—
                                (a) is to be regarded as placing any person
                                    in breach of contract or confidence or
25                                  as otherwise making any of them guilty
                                    of a civil offence; or
                                (b) is subject to compliance with or is to be
                                    regarded as placing any person in
                                    breach of or as constituting a default
30                                  under any Act or other law or any
                                    provision in any agreement,
                                    arrangement or understanding
                                    including, without limiting the
                                    generality of the foregoing, any
35                                  provision prohibiting, restricting or
                                    regulating the assignment or transfer of


     551274B.I2-6/5/2005                   25       BILL LA CIRCULATION 6/5/2005
                     House Contracts Guarantee (Amendment) Act 2005
                                        Act No.
                     Part 2—Amendments to House Contracts Guarantee Act 1987
     s. 28


                                            any property or right or the disclosure
                                            of any information; or
                                        (c) is to be regarded as fulfilling any
                                            condition which allows a person to
5                                           exercise a power, right or remedy in
                                            respect of or to terminate any
                                            agreement or obligation; or
                                        (d) is to be regarded as giving rise to any
                                            remedy for a party to a contract or an
10                                          instrument or as causing or permitting
                                            the termination of any contract or
                                            instrument because of a change in the
                                            beneficial or legal ownership of any
                                            property, right or liability; or
15                                      (e) is to be regarded as causing any
                                            contract or instrument to be void or
                                            otherwise unenforceable; or
                                        (f) is to be regarded as frustrating any
                                            contract; or
20                                      (g) releases any surety or other obligor
                                            wholly or in part from any obligation.
                                   65. Operation of provisions not subject to
                                       review
                                       Nothing done under this Division gives rise
25                                     to any cause or right of action or application
                                       before any court or tribunal.

                                     Division 2—Role of VMIA in relation to
                                                 guarantees

                                   66. Actions of continuing nature in relation to
30                                     guarantees
                                   (1) Any act, matter or thing of a continuing
                                       nature commenced before the appointed day
                                       by HGFL in respect of a guarantee, or a
                                       claim on a guarantee, given under this Act


             551274B.I2-6/5/2005                   26       BILL LA CIRCULATION 6/5/2005
             House Contracts Guarantee (Amendment) Act 2005
                                Act No.
             Part 2—Amendments to House Contracts Guarantee Act 1987
                                                                                   s. 28


                               may be continued and completed on and
                               after the appointed day by VMIA.
                           (2) For the purposes of sub-section (1), any act
                               or decision of HGFL before the appointed
5                              day in relation to a guarantee or claim on a
                               guarantee is to be taken to be an act or
                               decision of VMIA in respect of any period
                               on and after the appointed day.

                             Division 3—Role of VMIA in relation to
10                                       indemnities

                           67. Actions of continuing nature in relation to
                               indemnities
                           (1) Any act, matter or thing of a continuing
                               nature commenced before the appointed day
15                             by HGFL under Part 6 may be continued and
                               completed on and after the appointed day by
                               VMIA.
                           (2) For the purposes of sub-section (1), any act
                               or decision of HGFL before the appointed
20                             day in relation to any matter under Part 6 is
                               to be taken to be an act or decision of VMIA
                               in respect of any period on and after the
                               appointed day.
                           68. References to HGFL in any arrangement
25                             or agreement under section 53
                               Without limiting section 67, any reference to
                               HGFL in any agreement, arrangement or
                               assignment under section 53, must be taken
                               on or after the appointed day, to be a
30                             reference to VMIA.




     551274B.I2-6/5/2005                   27       BILL LA CIRCULATION 6/5/2005
                    House Contracts Guarantee (Amendment) Act 2005
                                       Act No.
                    Part 2—Amendments to House Contracts Guarantee Act 1987
    s. 28


                                       Division 4—Reporting by HGFL

                                  69. Final annual report by HGFL
                                     Despite the repeal of section 25A and the
                                     substitution of section 52, those sections, as
5                                    in force immediately before the appointed
                                     day, continue to apply to HGFL until it is
                                     wound up.'.
                                       _________________




            551274B.I2-6/5/2005                  28        BILL LA CIRCULATION 6/5/2005
             House Contracts Guarantee (Amendment) Act 2005
                                Act No.
                           Part 3—Amendments to other Acts
                                                                                    s. 29



                 PART 3—AMENDMENTS TO OTHER ACTS

          29. Amendment to Building Act 1993                                      See:
                                                                                  Act No.
                                                                                  126/1993.
                       In section 3(1) of the Building Act 1993 for the           Reprint No. 5
                       definition of "insurer" substitute—                        as at
                                                                                  31 May 2003
5                      ' "insurer" includes the Victorian Managed                 and
                                                                                  amending
                             Insurance Authority established by the               Act Nos
                             Victorian Managed Insurance Authority                26/2001,
                                                                                  60/2003,
                             Act 1996;'.                                          102/2003,
                                                                                  35/2004,
                                                                                  66/2004,
                                                                                  96/2004,
                                                                                  101/2004 and
                                                                                  108/2004.
                                                                                  LawToday:
                                                                                  www.dms.
                                                                                  dpc.vic.
                                                                                  gov.au



          30. Amendment to Domestic Building Contracts                            See:
                                                                                  Act No.
10            Act 1995                                                            91/1995.
                                                                                  Reprint No. 5
                       In section 3(1) of the Domestic Building                   as at
                                                                                  1 July 2002
                       Contracts Act 1995, in the definition of "insurer"         and
                       for paragraphs (b) and (c) substitute—                     amending
                                                                                  Act Nos
                       "(b) in relation to any domestic building work or          30/2003,
                                                                                  35/2004,
15                          domestic building contract that is subject to a       37/2004,
                            guarantee under the House Contracts                   103/2004 and
                                                                                  108/2004.
                            Guarantee Act 1987 or to which Part 6 of              LawToday:
                            that Act applies, the Victorian Managed               www.dms.
                                                                                  dpc.vic.
                            Insurance Authority established by the                gov.au
20                          Victorian Managed Insurance Authority
                            Act 1996.".




     551274B.I2-6/5/2005                 29        BILL LA CIRCULATION 6/5/2005
                             House Contracts Guarantee (Amendment) Act 2005
                                                Act No.
                                           Part 3—Amendments to other Acts
      s. 31


     See:                 31. Amendments to Victorian Managed Insurance
     Act No.                  Authority Act 1996
     11/1996.
     Reprint No. 2                (1) After section 6(e) of the Victorian Managed
     as at
     20 September                     Insurance Authority Act 1996 insert—
     2001 and
5    amending                         "(ea) to carry out any functions conferred on it by
     Act Nos
     102/2003,
                                            the House Contracts Guarantee Act
     40/2004 and                            1987;".
     108/2004.
     LawToday:                    (2) After section 8(4) of the Victorian Managed
     www.dms.
     dpc.vic.                         Insurance Authority Act 1996 insert—
     gov.au
10                                   "(4A) The Minister must consult with the Minister
                                           administering the House Contracts
                                           Guarantee Act 1987 before giving a
                                           direction under this section that relates to the
                                           functions of the Authority under that Act.".
                                              ═══════════════




                     551274B.I2-6/5/2005                 30        BILL LA CIRCULATION 6/5/2005
        House Contracts Guarantee (Amendment) Act 2005
                           Act No.

                                                                                        Endnotes



                                    ENDNOTES




                By Authority. Government Printer for the State of Victoria.




551274B.I2-6/5/2005                        31            BILL LA CIRCULATION 6/5/2005

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:3
posted:10/6/2012
language:Latin
pages:34