banner

Terms & Conditions

Building Certificate Australia Pty Limited Terms and Conditions of Service:

Definitions

Unless the context otherwise requires, the following definitions and the industry definitions set under The Building Professionals Act 2005, The Building Professionals Regulation 2007, Environmental Planning and Assessment Act 1979, and Environmental Planning and Assessment Regulation 2000, shall apply to these Terms and Conditions:

“Client” means the applicant/owner of the subject development;

“Company” mean Building Certificates Australia Pty Ltd ABN 45 105 050 897;

“Complying Development Certificate” means a certificate issued under Clause 130 of the Environmental Planning and Assessment Regulation 2000.

“Construction Certificate” means a certificate issued under Clause 142 of the Environmental Planning and Assessment Regulation 2000;

“Consent” means either Development Application consent, Complying Development Certificate or Construction Certificate approved by a Consent Authority or Certifying Authority;

“Critical Stage Inspections” means inspections required to be carried out by the Principle Certifying Authority pursuant section 109E of the Environmental Planning and Assessment Act 1979;

“EP&A Act” means the Environmental Planning and Assessment Act 1979;

“Occupation Certificate” means a certificate, either Interim or Final, as defined and issued under section 109H of the Environmental Planning and Assessment Act 1979;

“Principle Certifying Authority” or “PCA” refers to the servant, employee or contractor provided by Building Certificates Australia Pty in its capacity as a private certifying company authorised under the Building Professionals Act 2005 and Building Professionals Regulation 2007 and operating within the Environmental Planning and Assessment Act 1979 and Environmental Planning and Assessment Regulation 2000 to oversee the construction process for an approved Complying Development Certificate or Development Consent in accordance with these Terms and Conditions;

“Unit Rates” means the building surveyor’s with carriage over the project rate for any additional services that are outside the scope of service detailed in the Fee Proposal, at the agreed rate hour per hour;

Fee Proposals

  1. Unless otherwise stated, the fee proposal is open for acceptance for 30 days from the date of the fee proposal, but is subject to the Company’s acceptance of your written approval to proceed by way of return of the Agreement Authorisation Form;
  2. No conditions or stipulations in or attached to your acceptance of the Company’s fee proposal which are inconsistent with our Terms and Conditions or which purport to add too or modify them in any way shall have any effect unless expressly accepted by the Company;
  3. Should subsequent or additional services outside the scope of the services contemplated and detailed in the fee proposal be required, the Client will be charged in addition to the quoted price;
  4. 4.The Company reserves the right to review their fee proposal if development works have not finished within 24 months after commencement of works;

 

Variations

  1. Any requested variation to the services covered by the Company’s fee proposal must be notified in writing by the Client. If the Company agrees, the Company’s fee proposal may be adjusted accordingly or alternatively in the Company’s sole discretion the variation will be charged at time and cost;
  2. All Assessments and Approvals granted pursuant to the scope of works detailed in the fee proposal must be compliant with the Deemed to Satisfy provisions of the Building Code of Australia or otherwise clearly stated that an Alternative Solution is required prior to the our fee proposal being provided to the applicant/client. Changes to these requirements by the applicant/client may, at the discretion of the Company, render this agreement invalid, with any costs incurred by the Company payable by the Client;
  3. A new fee proposal is required to reflect changes in the original scope if the development varies from the original scope of works;
  4. Any Alternate Solutions needed to address both Volume One and Two of the BCA additional charges will be required for this specific and specialty service;
  5. A new fee proposal is required to reflect changes in the original scope if the development varies from the original scope of works;
  6. Should the need for further site inspections arise from site related matters including but not limited to neighbour and/or Council complaints, these will be charged at an hourly rate of as defined via the surveyor with carriage of the project.
  7. Should the need arise for a Notice of Intention under the EPA Act to be issued, Notices will be charged at $1,000.00 + GST per Notice.
  8. Council or neighbourhood complaints relating to your development where you or your builders/contractors are in breach of conditions of your development consent or works are preceding contrary to the approved development plans being DA drawings, Construction Certificate Plans and specifications are charged at an hourly rate of as defined via the PCA of the project.
  9. Developments requiring NSW Fire Brigade referral and/or approval under Clause 144 and 152 of the Regulations, a fee is payable to the NSW Fire Brigade, reimbursement is required for the fee’s to the NSW Fire Brigade within 14 days of the receipt of the invoice.

 

Cancellation

  1. No cancellation of the Agreement will be effective unless and until accepted and confirmed by the Company in writing;
  2. The Company will not refund monies already paid to the Company unless otherwise expressly agreed;
  3. Cancellation of this agreement may not be accepted if the cancellation will cause a breach of our certifying responsibilities or without prior consultation with the Building Professionals Board.
  4. The Company reserves the right to charge for services rendered from the date of acceptance until the date of the Company’s acceptance of the cancellation, a minimum cancellation fee of $500 + GST will be invoice upon cancellation or withdrawal of any project to cover or time, assessment and consultancy advice up to the cancellation dated;

Note: Once an Accredited Certifier and/or PCA have been engaged for a project, it is against the law to ‘Shop around looking for an assessment which suites you.’ A certifying authority has a legal responsibility to ensure specified community standards are maintained.

Certificates

  1. The Client or its authorised agents must not commence building works unless a Construction Certificate or Complying Development Certificate has been issued by the Company;
  2. The Client or its authorised agents must not occupy/use the premises under construction until an Occupation Certificate or an interim Occupation Certificate has been issued by the PCA;
  3. Where a development incorporates a Swimming Pool, a Certificate of Compliance issue via the Local Council under the Swimming Pools Act 1992 may be requested to form part of supporting documents prior to an Occupation Certificate being issued for the pool;
  4. A Final Occupation Certificate will only be issued when the PCA is satisfied the development Consent has been complied with and a satisfactory final Critical Stage Inspection has been carried out. All Critical Stage Inspections must have been carried out by the PCA to enable the issue of the Occupation Certificate;
  5. The Company reserves the right not to issue the Occupation Certificate if any unapproved variation or modification from the Consent have been made;

 

Critical Stage Inspections

  1. The EP&A Act 1979 and its Regulations requires that mandatory Critical Stage Inspections are to be carried out by an AC or PCA and that an Occupation Certificate cannot be issued until a satisfactory final inspection has been undertaken. The PCA may, with prior agreement with the Client, engage and accept compliance certificates from appropriately qualified professionals or another Certifying Authority accredited under Part 4 of the EP&A Act 1979 to the extent allowed under the EP&A Act 1979;
  2. It is the responsibility of the Client to notify the PCA at least forty-eight (48) hours before the inspection is required for a relevant stage. Additional fees may be charged where inspections are required to be carried out in excess of those contemplated and detailed in the fee proposal;
  3. If during the construction phase, the need for additional site inspections or meetings arises, the Client will be charged at Unit Rates.
  4. The PCA does not undertake quality control inspections. Critical Stage Inspections do not provide the level of supervision required to ensure that the minimum standards and tolerances specified by the ‘Guide to Standards and Tolerances’ are achieved and the PCA does not take any responsibility in this regard;
  5. The PCA takes no responsibility for the quality of any development.

 

Reliance of Information

  1. The Company relies on the truth and accuracy of the documents and information provided to them in good faith. It is an offence under the Act to provide false and misleading information to a Certifying Authority, and may render a Fire Safety Statement,  Construction Certificate, Complying Development or Occupation Certificate void;
  2. The Company takes no responsibility or liability for damages or cost incurred as a result of false and misleading information provided to the Company and relied upon during the provision of its services;
  3. The Client agrees that all the Conditions in the Development Consent or Complying Development Certificate have been identified and auctioned accordingly;
  4. The Client agrees that all works related to this development will, can, will and does comply with all relevant Conditions of Development Consent, Building Code of Australia and all relevant Australian Standards;
  5. Under the Environmental Planning and Assessment Regulation 2000, Clause 283 False or misleading statements - A person is guilty of an offence if the person makes any statement, knowing it to be false or misleading in an important respect, in or in connection with any document lodged with the Director-General or a consent authority or certifying authority for the purposes of the Act or this Regulation.

 

Effect of Breach of by Client or Authorised Representative

  1. The Company may at its discursion cancel the agreement and take appropriate action to recovery any outstanding costs and any disbursements.
    1. If the Client or their authorised representative:
    2. Breaches the Terms and Conditions for service; or
    3. Makes a default in any payment on the due date; or
    4. If the an individual shall die, commits an act of bankruptcy or have any Petition for Insolvency presented; or
    5. If an incorporated company, passes an effective resolution for its liquidation or a Court makes an order to that effect or an application is made for its liquidation or be unable to pay its debts due to insolvency within the meaning of the Corporations Act 2001; or
    6. If an incorporated company, has appointed a receiver or receiver and manager; or
    7. Commits or causes any act or omission to occur which in the Company’s sole opinion in any way may prejudice or harm the public reputation or credibility of the Company.

 

Payment

  1. The Company reserves the right to require the balance of the total agreed at the start of the project or if as agreed, staged throughout the development any outstanding invoices are to be paid in full, prior to the issue of the any Occupation Certificate or Final document issue.
  2. All invoices are due and payable 14 days from the date of issue;
  3. The Company reserves the right to charge interest in the amount of 10% p.a. on outstanding invoices from the day they become due;
  4. The Client indemnifies the Company, and the Company is entitled to be reimbursed for, for any costs and expenses (including but not limited to legal costs on a solicitor/client indemnity basis) which the Company incurs in collecting or attempting to collect payment from the Client;
  5. All invoices are issued pursuant to the Building & Construction Industry Security of Payment Act 1999.

 

Goods and Services Tax (GST)

  1. Unless otherwise specifically stated, all fees and amounts are exclusive of GST.

 

Exclusion of Liability

  1. To the extent permitted by law, the Company shall not be liable to the Client, its servants, agents or contractors for any loss, damage or injury to property or persons (including but not limited to loss of profit or business or other direct, indirect, special, consequential or incidental damages) resulting from, arising out of, or in connection with the Company’s services or any other claim whatsoever arising directly or indirectly out of or in any way attributable to the performance or non-performance of their services;
  2. The Client agrees to indemnify the Company, its servants and agents against all actions proceedings and claims (including consequential loss and loss of profits) brought against the Company its servants, employees or agents in relation to any injury loss of life or damage to any property caused directly or indirectly by the Company, or not arising directly out of or in any way attributable to non-performance of the Company’s services and the appointed Accredited Certifier and/or Principle Certifying Authority is not liable for any cost, defects or non-compliances identified as part of their role acting as an Accredited Certifier and/or Principle Certifying Authority for this application unless the Company has been grossly negligence in the provision of its services.

 

Governing Law

  1. The law of New South Wales shall govern all contracts and agreements and the Client hereby submits to the exclusive jurisdiction of the State of New South Wales;

 

Errors Or Omissions

  1. Clerical errors or omissions, whether in computation or otherwise in any fee proposal, acknowledgements or invoice, shall be subject to correction;

 

Force Majeure

  1. The Company shall not be liable to the Client for any loss or damage directly or indirectly arising out of or in connection with failure to perform any term of this contract where such delay or failure is caused directly or indirectly by any cause beyond the Company’s control.