Australia: Building Amendment Act 2008

Last Updated: 23 April 2009

The first part of this article can be found here.


  • Building Amendment Act 2008 – Mortgagees in Possession of owner/builder dwellings to be treated as owner/builders
  • National Guide to Substituted Service

Building Amendment Act 2008 – Mortgagees in Possession of owner/builder dwellings to be treated as owner/builders

The Building Amendment Act 2008 (Vic) which is anticipated to come into force on 1 September 2009 extends the reference or definition of an owner/builder or "a person who constructs a building" to include a mortgagee in possession as well as executors of estates and some others.

As a consequence contracts of sale entered into by mortgagees in respect of all dwellings sold in Victoria after the Building Amendment Act 2008 comes into force will need to comply with the provisions of Section 137B (2) of the Building Act which requires:

  • the obtaining of a report from a prescribed building practitioner not more than 6 months prior to entering into the contract of sale and provision of that report to the purchaser
  • warranty insurance to be in place together with the provision of a certificate evidencing the existence of that insurance being given to the purchaser
  • the contract of sale must set out the warranties contained in Section 137C which are in substance warranties as to the quality of workmanship and materials.

Accordingly, mortgagees in possession selling dwellings built by owner/builders will be warranting to the purchaser:

  1. that the work was carried out in a proper and workmanlike manner
  2. that the materials used were good and suitable for the purpose for which they were used and unless otherwise stated in the building contract were new
  3. the works were carried out in accordance with all laws and legal requirements, including the Regulations.

These obligations apply in respect of any Contract of Sale entered into within the prescribed period which is 6 years and 6 months from completion or if no occupancy permit or final inspection certificate is issued, 7 years from commencement.

If the Contract of Sale is in respect of a non domestic building constructed by an owner/builder, the applicable period is 10 years. If the building is sold within 10 years after the completion of construction, the requirements of Section 137B(2) referred to above will still apply. There are, however, no ongoing warranties as to the quality of workmanship and materials in a like manner to those set out in Section 137C for homes.


National Guide to Substituted Service

At gadens lawyers, we look to provide a national solution to all of our clients. There are however many differences between the laws and the way courts in particular operate in each state.

One issue that all of our national clients face is the issue of substituted service. Whilst many of the requirements are similar in each State, there are differences in the terminology, documents filed as well as what the court requires.

So what is the process?

In New South Wales, Victoria and Tasmania, a notice of motion is filed, together with affidavits in support from the process server as well as a gadens lawyers' employee. In addition, in New South Wales and Tasmania, draft orders are also prepared and filed with the notice of motion.

The documents filed in Queensland, is an application and supporting affidavits from the process server and a gadens lawyers' employee.

A chamber summons is filed in Western Australian together with supporting affidavits and a Minute of Proposed Orders.

South Australia has as its originating document, a non-contentious application which is filed electronically. Also filed are affidavits in support executed by a gadens lawyers' employee exhibiting the process server's report as well as draft orders.

What material needs to satisfy the Court?

There is some consistency on what the Court requires across each of the States with the material setting out attempts to serve the borrower as well as the additional searches undertaken to locate the borrower. The courts will then review the material however and what the Court looks for in each State will vary with this in mind we make the following comments:

  • in New South Wales, the affidavit by the process server should set out why the proposed method of service will bring the claim to the defendant's attention. The matter will be dealt with in Chambers without the need for an appearance
  • in Victoria, the court will scrutinise the contents of the affidavits and attempts must be detailed and precise and set out why it is believed that the service by the method proposed would bring the claim to the borrower's attention. A hearing date is set and appearance by a solicitor is required
  • the affidavits in Queensland need to include a statement that the proposed method will in all likelihood bring the claim to the attention of the borrower. The affidavit also needs to set out that service is impracticable. In Queensland, these matters are generally determined on the papers, however, if some urgency or concern whether the order will be made, an oral hearing is requested
  • courts in South Australia, allow the affidavit to include a copy of the process server rather than requiring a separate affidavit from the process server
  • the evidence in Western Australia must be sufficient to show that the claim will reach the borrower
  • the requirements in Tasmania, are that the affidavit should set out how the proposed method of service will bring the claim to the attention of the borrower. There is no requirement for an appearance as this application is dealt with in chambers.

What methods of service are allowed?

The methods of service also vary depending on the State involved. These include:

  • in Queensland, the orders can include posting of the claim but the orders will generally state that it won't deemed to be served until a few business days after posting for it. Alternatively, the claim can be affixed to the property or the court may order both methods of service
  • the orders made for Western Australia are usually for service by post at the borrowers last known address and/or the security property or by another method that the Master of the Supreme Court may stipulate. This may include a requirement that a notice be published in the West Australian newspaper
  • the orders made in Victoria are usually for service by post or any other method the Master of the Supreme Court stipulates. This could include leaving the proceeding in the mailbox at the borrower's last known address
  • New South Wales, the application has 2 rules relating to substituted services. The first is similar to other states, however, in an action for possession only, an order can be made that the claim be affixed to a conspicuous part of the security property. If this method is used, then judgment by default can only be obtained for possession and not for the debt
  • in Tasmania, an order may be made that the proceedings be affixed to a conspicuous part of the security property, and like New South Wales, judgment by default will only be given for possession
  • the methods of service in South Australia, includes the proceedings being affixed to the security property.

It will be interesting to see whether courts in other jurisdictions follow the decision of the Supreme Court of ACT in December 2008 and allow service of proceedings through Facebook or other social networking sites. The High Court in New Zealand recently allowed service through Facebook.


Whilst much of the material put before the court is similar in each State, there are individual peculiarities for each jurisdiction. This is why it is important for clients to have a national solution for all of its requirements. With our integrated national approach, gadens lawyers meet clients' needs in this regard.

Ian Dorey t (07) 3114 0205 e
Susan Forrest t (07) 3231 1586 e
Tim Sherrard t (02) 9931 4991 e
Campbell Hudson t (02) 9931 4957 e
Sonia Apikian t (03) 9252 2508 e
Malcolm Watson t (03) 9612 8218 e
Fidelis McGarrigan t (08) 8233 0679 e
Maxine Blount t (08) 9223 9234 e
Scott Chellis t (03) 6337 5555 e

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.