Volume 3

What warranties are provided by the Builder under the Domestic Building Act?


In a nutshell, defects in workmanship or materials as supplied by the builder are covered by warranty. The Builder needs to ensure that the material he obtains for the construction of your home performs and is installed in a proper workmanlike manner. The Builder must ensure that all works performed and materials supplied by subcontractors are done so in accordance with the standards and tolerances applied to most commonly used practices. Check out the Guide that the Building Commission has published on some common issues “Guide Standards and Tolerances” (the Victorian Civil and Administrative Tribunal follow the Guide for assistance on defects).

You should bear in mind that not all observed imperfections are defects and that any works outside the scope of the Builders engagement is not covered by warranty (unless these are variations). Fair wear and tear and failure to maintain is also not covered by warranty.

Are there ways to void warranty?

If at any time you have works performed after the completion of building, you will not be covered for any defects on works performed by the third-party ( and it could void the builder’s warranty for the particular area as to where the works were performed unless the builder knows about it and consents to it)

Planting a tree too close to your home may also void the warranty. Should the cause of any structural defect/damage to your home be a result of any landscaping or activity as instigated by you, it could void your warranty.

Warranties and Subsequent Ownership

Beware when purchasing a home. It is assumed that where defects are observed or where the new owner has been placed on notice of those defects, the owner has purchased the land for the price that has taken those defects into account. Therefore waiving your right to claim for defects later. Therefore it is always advised to have a full and complete inspection of your home prior to purchasing.

What if the Builder refuses to rectify the defects?

If you have advised your builder of the defects and he refuses to rectify those defects, or if the builder has attempted to rectify those defects but has failed to do so in a proper workmanlike manner (or has failed to pay you for the cost of rectifying those defects), then usually your only other option is to issue an application at the Victorian Civil and Administrative Tribunal. You have 10 years to sue the builder commencing 10 years from the date that the occupancy permit was issued (or from the date of the final inspection), your warranty then expires.


Volume 2


In order to avoid a dispute with your builder about price variations relating to modifications that may be required to obtain your Building Permit, it’s a good idea to obtain your Building Permit before you enter into your Major Domestic Building Contract. There is one catch though; in order to obtain a Building Permit you will need to identify the builder on your application. The only way to avoid a dispute later is to ensure that you have obtained several quotes from various builders so that you are satisfied with the price of construction.

Sometimes owners engage an expert or consultant to assist them with selecting a builder and reviewing tenders, however this usually doesn’t happen. If you were to engage an expert or consultant to help you select your builder this may deter a future dispute. Most owners don’t have a clue about building or the process. A registered construction professional, etc. would be able to help  you with this process to make sure that all particulars, selections and documentation is done correctly to ensure that your house gets built the way you want it when you want it.

When you receive tenders from builders, you should make sure that the builder gives you the Contract Price, the amount required for Deposit, his complete identification and contact details and registration number, the property address, a description of the construction works, a draft Building Contract, the proposed commencement date and completion date and any exclusions or special conditions that should be noted. A Domestic Building Contract should also have references to liquidated damages, payment terms, interest, builder’s margin, provisional allowances, amongst other things.


If you wish to build your home on your own and without a builder, you can apply to the Building Practitioners Board for an owner-builder certificate of consent. If you are constructing a home or renovating and are not involved in the business of building and are the person registered on the title of the land that you intend to build upon ( not a company) you may apply and are eligible for an owner-builder’s certificate of consent.

An Owner Builder is an owner who overlooks and manages building work by engaging and contracting with individual tradespersons for the construction of their home. An Owner Builder is still an owner and therefore if you engage a tradesperson to complete works to your home, then the contract is a Domestic Building Contract and any tradesperson that is required to have insurance must have insurance and be registered prior to entering into a Domestic Building Contract with you. If you choose to sell your home before it reaches 6.5 years from the date of receiving your occupancy permit, you must obtain the required insurance certificates for the works completed as well as a report from a consultant whom must also be insured prior to selling your home.


In Victoria, most builders use the standard Domestic Building Contracts from the Housing Industry Association, Master Builders Association of Victoria or Australian Building Industry Contracts.

These contracts are drafted reasonably and are negotiable. In order to avoid disputes later, it is best practice to have all details and specifications particularised clearly (amongst other things) and get legal advice before you sign.


The Domestic Building Contracts Act 1995 only allows Cost Plus Contracts to be entered into when the costs of the completed work is above $500,0000 or where the works are for renovations, extensions etc. to existing buildings and where the builder cannot estimate the work involved until further investigated.

A cost plus contract is where you agree to pay the builder for the cost of construction plus an agreed margin for the builder with the builder. We have discussed this further in our article which can be found at

Basically, a cost-plus contract is an agreement where the owner is to pay for the builder’s costs (whatever they turn out to be, provided that the expenditure is properly documented), plus an agreed margin for the builder’s overheads and profit.


Most of the standard contracts mentioned above are fixed price contracts. Limited to some exceptions, all Domestic Building Contracts must be fixed price for the construction of your home for labour, materials, margins etc.  All exclusions must be noted for works not included in the Contract price.

Fixed Price Contracts may be varied by way of variations (adjustments etc.) which would modify the contract price. We have discussed this further in our following article


Builders any are not required to carry out all the works to build your home (renovation, etc.). The Domestic Building Contract you have with the builder is called a “head contract” and contracts between the builder and any tradespersons that the builder may engage are called sub-contracts (which are not contracts that are protected under the Domestic Building Contract Act).

Since you have no direct liability or relationship with a subcontractor, you should not communicate directly with any subcontractors since your rights and obligations lie with the builder directly. Sometimes a builder may suspend work, end or terminate the contract for breach of contract should you interfere or cause complications as a result of communicating with subcontractors.



The Domestic Building Contracts Act applies and protects you in cases “where you arrange or manage the carrying out of Domestic Building work other than a contract between a builder and a subcontractor”.

Domestic Building Work is any work associated with your home (have a look at or complete comprehensive list of works to which the Domestic Building Contracts Act applies to at including but not limited to landscaping, paving, swimming pools, and the list goes on.


Some individual trades do not fall within the scope of the Domestic Building Contracts Act and therefore a Domestic Building Contract will not be required. Some trades such as electricians, insulation installation of floor coverings, plasterers, plumbing, painting, glaziers, tillers, installation of antennas, erection of fencing do not fall under the Domestic Building Contracts Act etc.


Foundations data is any information concerning the building site where the builder needs to ensure that he has been extra careful when constructing such as construction of footings, surveys, test results, plans, specifications,   drainage plans, engineers drawings, etc..

The Domestic Building Contracts Act does not apply in the case  foundations data however does fall it within the Domestic Building Contracts Act should analysis, etc. of the foundations data be required.

You must ensure that you have provided the required  data to the  builder and if the builder requires further data he must ensure he obtains it himself prior to construction.


Any contract entered into for domestic building work as outlined by the Domestic Building Contracts Act 1995 is considered to be a Domestic Building Contract. Any Domestic Building works carried out above the price of $5000 is defined as a Major Domestic Building Contract (even if the initial price was below $5000 any increase in price above $5000 will then make it a Major Domestic Building Contract).


A Domestic Builder must be registered in order to be eligible to obtain insurance and therefore in order to be eligible to enter into a Domestic Building Contract with you. When a Builder enters into a Domestic Building Contract with you, the Builder must also obtain a job specific insurance policy under their eligibility cover. If the Builder doesn’t have the right insurance or insurance at all, it is against to law that he demand or accept any payment of monies from you pursuant to a domestic building contract.

Insurance is not required for works that are under $12,000 (including any variations etc.) and multi storey and multi unit developments (seek legal advice if you are not sure what these definitions exclude).


We have written about this in more detail at, however the Domestic Building Contract Act requires a Domestic Building Contract to be in writing and contain, full terms, all works to be described, all specifications, full details of all parties, the builder’s registration details and insurance policy details, date of commencement of works and completion and working days, checklist, delays period, liquidated damages etc. The Domestic Building Contract Act states that the Contract will not be enforceable unless all parties have executed it.


All Building Practitioners who carry out domestic building work must be registered with the Building Practitioners’ Board unless exempted from being so. Building Surveyors must not issue a building permit unless he/she is satisfied that each builder holds the required insurance (therefore is registered).

Usually the Builder would hold an unlimited registration which means that he would not be restricted to the type of works performed where as a limited registration may limit the works performed to say carpentry works.

An unregistered builder is not allowed to contract directly with you unless that are exempt from doing so.

It is always a good idea to confirm the registration of a Builder prior to contracting with the builder to ensure that the builder holds an unlimited registration and verify the details provided to you by the builder. You can do this by visiting the following website‎.

Volume 3 coming soon: warranties and stages


Volume 2 – What are my rights and what do I need to look out for during construction?

Engage an Expert Building Consultant

It is always a good idea to have an expert building consultant inspect all construction work of the Builder to ensure that all works have been carried out as intended and pursuant to the plans and specifications in a proper workmanlike manner.

Good Communication

You should always communicate with your Builder about any concerns you may have to ensure that you have an understanding of what the process is that you agree on any matters of concern in order to avoid disputes later.

Visiting the Construction Site

You have a right to visit the building site during construction of your home provided that you do not interfere with the construction. If you interfere with the site or construction, the builder may be able to seek any costs from you relating for delays or damages with providing you with 5 days notice of his intention to do so. It’s best to organise a weekly or fortnightly meeting at the site with your builder to view construction and discuss any concerns you may have.

It is good practice to speak with your Builder prior to attending  the site to make sure that  there are no occupational health and safety issues to consider.

Do as you are obligated pursuant to the Contract

If you haven’t made all your selections at the time of signing your Domestic Building Contract, or provided the builder or tradesmen with any goods they need for construction, the builder will be entitled to suspend works and seek damages from you for delaying construction. It’s a good idea to have things organised in advance.

Don’t pay the Builder or Tradesmen prior to the completion of the stage

Your builder is not entitled to progress payments in advance or prior to the completion of a stage. If you pay in advance, domestic building insurance  won’t cover you for any claims made for payments made in advance. A building surveyor usually has to inspect each stage and pass before the stage can be passed as competed. You should ask your Building Surveyor for copies of any reports.

Make sure all Variations are in Writing

All variations should be agreed upon and signed prior to any works commencing in accordance with those variations so as to avoid any disputes later about costs or the scope of those variations.



Volume 1 – The Beginning of the dream…


Most people don’t have a clue about building or don’t know what their rights and obligations are  when they enter into a Domestic Building Contract.

So we can assist you with understanding your rights, obligations ,  procedures, laws and options available to you when building we need to make sure your understand what needs to happen from the beginning of your project.


We are all aware that the first phase of your project involves designing your home. It is therefore very important that you ensure that the design provides you with the building you have hoped for at completion. Drawings, plans, specifications, technical requirements all need to be prepared for the purposes of obtaining your building permit and assisting your builder with the construction of your home so that tat completion you have your dream home ( or renovation) as you hoped for.

In most cases it is the owners obligation to ensure that the correct working plans, drawings, specifications, etc are provided to the builder. If you have not provided the builder with a complete set of drawings, plans etc, to be used for the purposes of building, the builder may claim against you should you make a claim for defective works.


The design or pre-construction phrase of your home usually comprises of the following steps:

  1. Instructing or briefing the professional on how you want your home to look like when it is completed.
  2. The professional would design the plans for your home in a sketch format for you to approve.
  3. Then the professional will prepare drawings, specifications etc for you.
  4. An application is made for a planning permit (if required).
  5. Complete drawings are completed such as computations, tests, reports, drawings, specifications, schedules, etc)

The Law requires that all plans and specifications contain sufficient information in order for a building permit to be obtained.


You the owner would engage an architect/designer/drafts person or engineer to draft and complete the design of your home. Before engaging a professional to provide these services you must ensure that the professional is registered.  Some builders offer these services or may provide the design of your home however, you must bear in mind that all professionals providing such services must be qualified and registered.

If you engage a professional for the design of your home you will have to enter into a Design Contract (which is a Domestic Building Contract) unless the professional providing you with this service is a registered architect, a registered engineer in building engineering or a drafts person registered in building design. Firms providing these services where only one or more directors are registered would be considered as a registered party.

You must enter into a Domestic Building Contract for the pre-construction phrase of your home if you are engaging the services of any other professional builder. If the cost of the service is more than $5000 then you will need to enter into a major domestic building contract with the other party.

It’s usually the case that Design Contracts reach completion upon the granting of a building permit which is issued by a building surveyor. What the Building Permit then allows you to do is to proceed with the construction of your home in accordance with the terms of that Building Permit. This is where you would usually enter into a Major Domestic Building Contract with your Builder for the construction of your home (“the Construction Phrase”). Some contracts however, provide for the design and construction of our home and in this case you need not enter into any further contract.

You are not obliged to enter into a construction contract with the same builder with whom you had a pre-construction contract with. You may elect any other builder to construct your home and use the plans and drawings you obtained from the first builder( unless it is otherwise stated in your pre-construction contract).


Design and Construct

Rather than entering into 2 separate contracts for the design and then the construction of your home, some owners enter into a Design and Construct Contract. In these types of contracts you would enter into the one contract for the entire project from the design of your home to completion of your home. These are Major Domestic Building Contracts and they must comply with the Domestic Building Contracts Act 1995.

Spec Design Homes

Spec Design Homes is a term used where a builder has prepared the design of a dwelling (or a  different number of designs) that is offered to prospective owners to select from. The Builder would then construct the home in accordance with your selections. If you selected a design from the builder and didn’t modify anything then you don’t need enter into a design contract with the builder.  You would then enter into a Major Domestic Building Contract with your builder for the construction of your home only. It usually the case that owners would usually make modifications to the design s(we all have different tastes when it comes to what we like) and in which case a design contract would be entered into (provided that there is a charge for these modifications).

Display Homes

If you buy a display home, you buy the basic design of a home that would be constructed to completion. Owners of display homes are protected by the law as well, and the  builder is required (amongst other things) to build a home identical to the display home viewed by you except for items as agreed  by you as noted in your  Domestic Building Contract.

The Building Permit

In most cases its up to the builder to obtain the building permit. Sometimes you can elect to do this yourself however, in most cases the designer or builder would obtain a Building Permit. You must ensure that your Domestic Building Contract states whom is responsible for obtaining the Building Permit to avoid disputes.

If any changes are required to be made to the drawings or specifications, the designer is responsible for those modifications as required by the building surveyor.

Once you get your Building Permit you can start the construction of your home and you can only enter into a construction contract once the Building Permit is obtained or where documents  required to obtain a Building Permit are nearly completed or already submitted to Council for approval.


How do I make changes to my Domestic Building Contract?

You may only make changes to your Domestic Building Contract by way of written and signed variations that has been agreed upon between you and the builder including variations to the plans and specifications. Prime cost items or provisional sum items may change your Contract Price.

All Variations must be made in writing

Variations that have not been made in writing are usually the biggest cause of disputes between owners, builders and owner-builders and tradespersons. It’s always best to have all changes to the Domestic Building Contract made in writing to deter disputes or misunderstandings later with your Builder.

Variations to a Domestic Building Contract are changes made to the Domestic Building Contract that you and the Builder agree upon or changes to which a building surveyor (architect, building consultant etc) may order after the Domestic Building Contact has been signed and where works have commenced.

If any changes are ordered by building surveyor, building expert, etc you only have 5 days to disagree with those changes in writing.

The Domestic Building Contracts Act 1995, states that all variations must be made in writing, usually by way of variation notice, it must include all details of changes to be made to the Domestic Building Contract, the cost of the changes and new Contract Price and completion date prior to the works commencing.

You won’t need a Variation Notice if the builder believes that the variations would not cause any delay, requirement for permits or costs of more than 2% of the original Contract Price.

If you haven’t signed off on a variation, the Builder or tradesperson cannot demand that you pay for the variation (nor does this mean that the builder isn’t entitled to the payment for the variation) however the builder may make an application against you in the Victorian Civil and Administrative Tribunal and have the Tribunal determine the payment of variations.

When can I terminate or withdraw from my Domestic Building Contract?

During the Cooling Off Period

You have 5 days to withdraw from your Domestic Building Contract after you have signed it provided that you have not received legal advice before you signed it. If you exercise your right to withdraw your Domestic Building Contract during the cooling-off period, you will not be liable to pay the builder or any third party for any loss, costs or damages unless stated so in the Domestic Building Contract. If you had previously withdrawn from a Major Domestic Building Contract with the same Builder on the same terms for the same property, you wont be entitled to withdraw for your Domestic Building Contract.

If you exercise you right to withdraw from the Domestic Building Contract you must notify the builder in writing of your intention to withdraw within 5 business days of signing the Domestic Building Contract by personally delivering the notice to the builder, serving it by registered post or as noted in your Domestic Building Contract.

Contract Price or Completion

The Domestic Building Contracts Act 1995 also allows you to terminate your Domestic Building Contract if the Contract Price rises above 15% or more of the total Contract Price, if completion has not been reached within one and one half of the time that it was to be completed or if the increased time or costs is not reasonable

Defective Works not rectified

There are other instances where you may terminate your Domestic Building Contract, such as when the Builder has been provided ample time to rectify defective works prior to completion and fails to do so, however each case will need to be checked on its merits and its best that you obtain legal advice prior to terminating your Domestic Building Contract to avoid any claims from being made against you by the Builder.



Read this before signing a major Domestic Building Contract!

You will need to sign a Domestic Building Contract with a builder or tradesperson when you are undertaking domestic building works for  the value of more than $5,000.00 and where:

  1. You are an owner engaging the service of a builder for the works in excess of $5000.00;
  2. you are an Owner Builder engaging the services of a tradesperson and/or subcontractor for the works in excess of $5,000.00.
  3. you are erecting or constructing
    • a home including any landscaping, paving, fixtures associated with the home
    • retaining walls,
    • garages,
    • driveways,
    • fences,
    • workshops,
    • swimming pools,
    • the provision of lighting, heating, ventilation, air-conditioning, water supply, sewerage or drainage  to the home or property on which the home is or is to be,
    • renovations, alterations extensions, improvements and repair of a home,
    • demolition and removal of a home,
    • any work associated with the construction of or erection of a building on land that is zoned for residential purposes,
    • preparations of plans and specifications for carrying out of works.
    • your contract for works is more than $5000.00 even if you are given separate quotes from the same builder for different stages of the works.

How do I avoid disputes and what should be included in my Domestic Building Contract?

Building disputes are becoming more and more common.

It is always recommended that you obtain legal advice prior to signing a Domestic Building Contract. One consultation may save you thousands of dollars, stress and pressure on relationships and home life. A benefit of obtaining legal advice from the right lawyer is to ensure that you and your builder both have a clear understanding of what you have agreed upon and that the same is reflected in your Domestic Building Contract. Before you sign your Domestic Building Contract you should make sure that:

  • you obtain legal advice (even if you have already signed and you have 5 days to terminate your Domestic Building Contract);
  • check that the Builder is a registered builder or in the case of a company that at least one of the company’s directors is a registered building practitioner;
  • you have the correct “working plans” for your project and you understand and agree to what is stipulated in those plans;
  • you have all the specifications and have a clear understanding of what the specifications are ( it is best to have all of you selections described in detail prior to signing your contract);
  • ensure that all responsibilities have been assigned to either you or your builder (as agreed), including who shall be responsible for the supply of goods and who shall be responsible for obtaining the relevant permits, soil reports etc;
  • you agree to the Contract Price including GST and understand your liabilities outlined in the Domestic Building Contract, such as payment terms,
  • you can easily read and understand what is written in the Domestic Building Contract;
  • all terms and conditions are included and it is the complete Domestic Building Contract;
  • there are full and complete details described for the work to be carried out;
  • all the names of the parties and details are correct;
  • the Builder’s registration number is noted and is correct;
  • it clearly states the Domestic Building Contract Price (check the GST component);
  • it states the amount of deposit payable and that it accords with the limitations placed on it by the Domestic Building Contracts Act 1993;
  • it states the amount of progress payments payable and that it complies with the Domestic Building Contracts Act 1993;
  • it states the date upon which the Domestic Building Contract was signed by you;
  • it states when the work must commence and how the date is to be determined;
  • it states that you have a 5 day cooling off period;
  • it clearing describes all definitions used in the Domestic Building Contract;
  • it sets out warranties
  • it has a checklist;
  • it sets out the details of the required insurance (if the works are for more than $12,000.00).
  • it states the number of days allowed for delays.
  • you and the builder understand what  ‘reasonable access’ to the building site is.
  • Always sign off on variations made to the Domestic Building Contract ( you don’t have to pay for additional items that should have been foreseen by the Builder when entering into the Domestic Building Contract).

5 days Cooling Off Period

If you have signed your Domestic Building Contract, you only have five business days after receiving a signed copy to withdraw from the Domestic Building Contract without receiving a penalty, unless you obtained sought legal advice on the contract prior to signing.

What the Builder must do prior to commencing Domestic Building Works.

The Builder must ensure that the site is suitable for the proposed work and that he has obtained the required foundation data information (such as a soil report) that satisfies him enough to proceed with the work. He must also ensure that:

  • he has obtained all building and planning permits (unless otherwise stated in the Domestic Building Contract);
  • he is satisfied with the plans, drawings and specifications (including any specific special requirements) described in the Domestic Building Contract;

To reduce your chances of having a Building Dispute with your Builder it is a good idea to avoid Prime Cost Items and Provisional Sum Items

Prime cost items and Provisional Sum Items are the source of many Domestic Building disputes and are often misunderstood. Occassionally some less reputable builders would underquote on price of a Domestic Builder Contract and thereafter seek unrealistic costs from the Owner.

Prime Cost Items are  fixtures or fittings (including the costs of supply any material needed for the work) under a Domestic Building Contract where the builder cannot determine the cost of at the time of signing the Domestic Building Contract. This would include your selections of fixtures and fittings that are itemised in your Domestic Building Contract but not described or costed. Usually this happens when you don’t stipulate the make, model or exact selection of items prior to signing your Domestic Building Contract and therefore the builder can only give you an estimate on each of those items. A builder must provide proof that evidences the costs of any prime cost item in the Domestic Building Contract.

Provisional sum items are an estimate of the cost of carrying out a particular work (including the cost of supplying any materials needed for the work) under a Domestic Building Contract for which a builder, after making reasonable inquiries, cannot give a definite amount at the time that the Domestic Building Contract is entered into.  Usually excavation work would be noted as a provisional sum item and building costs could increase if additional excavation work is required as a result of rocks,   if not provided for in the soil report to your builder.  It is a good idea to avoid agreeing to any provisional Sum Items as it can increase the price agreed in your Domestic Building Contract.

Cost-Plus Domestic Building Contracts should be avoided !

Costs- Plus Domestic Building Contracts under which the amount the builder is to receive is not stipulated or determined at the time that Domestic Building Contract is signed. Cost-plus Contracts are usually used for renovation works in excess of $500,000.00 and where an owner agrees to pay the builder the actual costs of construction plus a fee or percentage to cover the Builder’s costs for supervision, skill and profits. The builder in this case is at an advantage since he is known to produce a profit at the end of the project.

Cost-Plus Domestic Building Contracts are considered to be unfair for owners because some less reputable builders may be encouraged to allow costs to increase in order to earn a greater profit. Cost-Plus Domestic Building Contracts should generally be avoided in all circumstances.

What if my domestic building works are under $5000?

To avoid a building dispute it is best to have a written contract that clearly sets out what work is to be carried out, the costs involved and the specifications (as well as any agreed variations in writing).