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Terms of Engagement
These Terms of Engagement set out the basis on which Apex Approvals Pty Ltd provides building certification services for residential building work (Class 1 and 10) in Queensland.
Independence of the private certifier
A building certifier performs a statutory function. The private certifier must assess the Project on its merits and in accordance with law, and may be required to act contrary to the Client's commercial interests.
Apex cannot agree, as a condition of engagement or otherwise, to approve the Project, to reach any particular outcome, or to refrain from performing any statutory function. Any such agreement would be of no effect. Nothing in these Terms, the Fee Proposal, or any conduct of the parties operates to limit the obligations of Apex or its private certifier under the Building Act 1975 (Qld) or the Code of Conduct for Building Certifiers. Only one building certifier may be engaged for the Project at any time.
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Application of These Terms of Engagement
These Terms of Engagement apply in conjunction with any Quote, Fee Proposal, Engagement Agreement or other written engagement accepted by the Client under which Apex Approvals Pty Ltd provides building certification services, including the services of an appropriately licensed private certifier.
These Terms apply to all services, functions and actions arising from or associated with the engagement, including assessment and certification services, inspections, requests for information, statutory forms, notices, certificates, lodgements, finalisation and discontinuance of the engagement.
The Quote and these Terms of Engagement together constitute the Engagement Agreement for the relevant Project.
Where a function is required by law to be performed by an appropriately licensed private certifier, that function will be performed by the individual private certifier.
3
Engagement and Acceptance
By accepting the Quote electronically, otherwise confirming acceptance of the Quote, and/or making any payment requested under the Quote after being provided with access to these Terms of Engagement, the Client confirms that they have read, understood and accepted the Quote and these Terms of Engagement.
The Quote and these Terms of Engagement together constitute the Engagement Agreement between the Client and Apex Approvals Pty Ltd for the Project.
3.5
This contract is between the Client and Apex Approvals, based on the plans supplied and the plans as ultimately approved and stamped.
3.3
Only one building certifier may be engaged for the Project at a time. If the Client engages another person to provide services substantially the same as the services for the Project, Apex may treat this agreement as terminated in accordance with clause 13.
3.2
Apex may engage in other business or activities during the term, provided they do not detrimentally affect performance of the services.
4.1
Apex may subcontract administrative or support functions provided any subcontractor holds the necessary qualifications and licences. The named private certifier remains responsible for the statutory certifying functions, and any change of building certifier is carried out in accordance with the Building Act 1975 (Qld).
4
Scope of Services
Apex Approvals Pty Ltd (Apex), together with its Building Certification Team and appropriately licensed private certifier(s), is engaged to provide building development application assessment and certification services for the Project described in the Engagement Agreement. Where relevant to the Project, the services include:
Assessment of the application against the National Construction Code (the edition adopted and in force in Queensland) and the Queensland Development Code;
Plan and document review, compliance assessment and approval processing, including managing any request for further information;
Issuing the decision notice (approval or refusal) under the Building Act 1975 (Qld);
The mandatory inspections required by the Building Act 1975 (Qld) for the Project, as set out in the Inspection Schedule in the Fee Proposal;
On satisfactory completion of all required inspections and receipt of all required certificates, issuing the Certificate of Classification / final certificate (Form 21) where applicable;
Regulatory advice on the Project and management of the application.
Services included
1.1
Assessment of a building development application for the Project against the National Construction Code (edition adopted and in force in Queensland) and the Queensland Development Code.
1.2
The mandatory inspections required by the Building Act 1975 (Qld) before and during construction and at completion, as applicable to the Project and as set out in the Inspection Schedule.
1.3
Determining the application in accordance with the Building Act 1975 (Qld) and issuing the relevant decision notice (Building Development Approval or refusal).
1.4
Providing regulatory advice on the Project and managing the application, including managing any request for further information. A delay will occur if further information is required; Apex will notify the Client in writing of the delay and the information required.
1.5
Processing of Form 11 (Decision Notice) and, on satisfactory completion of all required inspections and submission of required certificates, Form 21 (Certificate of Classification) where applicable.
1.6
Apex maintains professional indemnity and public liability insurance as required by the Building Act 1975 (Qld) and the Building Regulation 2021 (Qld), and will provide evidence of that insurance to the Client on reasonable written request.
Excluded from scope
Building design or drafting; engineering, energy, soil, wind, stormwater, wastewater and other consultant reports; council or authority fees not expressly included; referral-agency applications, siting variations and applications to build over or near infrastructure (available as additional services under clause 5.7); assessment or rectification of pre-existing, unapproved or unlawful building work; identification, assessment, removal or management of asbestos, contamination or other hazardous materials; and any matter beyond the assessment scope. Commercial (Class 2–9) work is provided under a separate scope and a separate agreement.
Services excluded
2.1
Building design or architectural advice beyond application management and regulatory advice.
2.2
Drafting of plans or any other documents required for the application.
2.3
Consultant reports and certificates (including engineering, energy efficiency, soil, wind classification, acoustic, stormwater and wastewater), which remain the responsibility of the relevant competent person or consultant engaged by the Client.
2.4
Matters of Building Quality as between the Client and any builder (see Definitions).
2.5
Any guarantee that the Project will obtain a Building Development Approval.
2.6
Any act Apex or its private certifier considers contrary to the Building Act 1975 (Qld), the Code of Conduct for Building Certifiers, or other applicable law.
2.7
Referral-agency applications, siting variations, and applications to build over or near infrastructure or for town-planning matters (available as additional services under clause 5.7).
2.8
Pre-existing and unapproved work. The assessment, approval, regularisation or rectification of any existing building work on the site that was carried out without approval, that differs from a previous approval, or that is otherwise unlawful. Apex assesses only the Project as described in this agreement. Where such work is identified, Apex will notify the Client in writing, and any resulting work is a variation under clause 4.
2.9
Hazardous materials. The identification, testing, assessment, removal or management of asbestos, contaminated soil, acid sulfate soils or other hazardous materials, which remain the responsibility of the Client and the Client's consultants.
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Client Responsibilities
10.1
The Client warrants that: (a) data provided to Apex is accurate and complete; (b) Apex acts with the Client's authority; (c) no other person has been appointed to perform the services for the Project unless the Client has given prior written notice; and (d) the Client is the registered owner of the land or holds the registered owner's written consent to the making of the application and to the carrying out of the Project.
10.2
The Client must: (a) provide all information required by Apex within the time specified; (b) give Apex such access to the site as is required; (c) book inspections as required and not cover or conceal work to be inspected; and (d) comply with the Client's obligations under the Building Act 1975 (Qld) and the Planning Act 2016 (Qld) in connection with the Project.
10.3
Owner's consent. Where the Client is not the registered owner, the Client must provide the registered owner's written consent before Apex commences the services. Apex may decline to commence, or may suspend the services under clause 12, until that consent is received. The Client indemnifies Apex under clause 8.2(e) in respect of any claim arising from a want of that consent.
10.4
Joint clients. Where two or more persons are named as Client, each is liable jointly and severally for all obligations under this agreement, and notice given to one is notice to all.
3.6
The Client declares that the plans submitted are a true and accurate representation of the proposed development and illustrate all relevant features of the land, including existing buildings and structures (whether approved or not), vegetation, easements, and services above and below ground.
3.9
Where the Client is an owner builder, the Client is responsible for holding any owner builder permit required by the QBCC and for the owner builder's obligations under the Queensland Building and Construction Commission Act 1991 (Qld).
3.10
Planning approvals as a precondition. Where the Project requires a development permit, siting variation, referral-agency response, concurrence-agency response or any other approval under the Planning Act 2016 (Qld) or a local planning instrument, a Building Development Approval cannot be issued until that approval is in effect and a copy has been provided to Apex. Obtaining any such approval is the Client's responsibility unless expressly included in the Fee Proposal. Any delay arising from an outstanding approval is not a delay caused by Apex, and any resulting additional work is a variation under clause 4. Apex can assist with applications under the Planning Act 2016 (Qld), including development applications, siting variations and referral-agency applications, on a fee-for-service basis under clause 5.7.
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Assessment and Requests for Information
Assessment is carried out under clauses 1.1 and 1.4. Where further information is required, Apex notifies the Client in writing of the delay and the information required. The following circumstances entitle Apex to issue a written variation notice and to vary the fee to reflect the reasonable additional cost of the varied work.
4.2
Apex may issue a written variation notice, and vary the fee to reflect the reasonable additional cost of the varied work, in any of the following circumstances:
4.2.1
building works do not commence within 60 days of the Building Development Approval being issued;
4.2.2
any competent person causes a delay of more than 21 days in the progress of the works;
4.2.3
any part of the works is redesigned by the Client or the Client's representative;
4.2.4
any part of the Project changes, or is proposed to change, from a Deemed-to-Satisfy solution to a Performance Solution under the NCC. The Client acknowledges that a Performance Solution ordinarily requires substantial additional assessment, additional reports or certificates from competent persons, additional coordination, and additional regulatory or referral-agency review. A variation notice will be issued under clause 4.3 for the reasonable additional cost of that work;
4.2.5
additional approvals or certificates are required beyond those listed in the Fee Proposal;
4.2.6
a change in the Building Act 1975 (Qld), the NCC (including the transition to a new edition) or other law requires the works or the work of Apex to be varied;
4.2.7
more inspections are required than those listed in the Inspection Schedule, including any re-inspection of work that is incomplete, inaccessible, concealed or non-compliant, and any inspection attended where the work was not ready for inspection; or
4.2.8
the Client fails to provide information, documents, certificates, access or instructions within the time reasonably specified by Apex, or gives instructions that are inconsistent with instructions previously given, and that failure or inconsistency causes Apex to perform additional work.
4.3
A variation notice is given in writing within 21 days of Apex becoming aware that a variation is required, and states the reason and the estimated additional cost. Where a variation materially increases the fee for a reason not caused by the Client, the Client may, within 10 business days of the notice, terminate this agreement, in which case clause 13.3 (payment for work performed) applies and no further fee is payable.
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Inspections
The inspections included in the fee are the mandatory inspections required by the Building Act 1975 (Qld) for the Project, as listed in the Inspection Schedule in the Fee Proposal (clause 1.2).
Additional inspections are chargeable
Any inspection beyond those listed in the Inspection Schedule — including any re-inspection of work that is incomplete, inaccessible, concealed or non-compliant, and any inspection attended where the work was not ready — is charged as an additional fee under clause 4.2.7 or clause 5.6.
The Client must book inspections as required and must not cover or conceal work that is to be inspected (clause 10.2(c)), and must give Apex such access to the site as is required (clause 10.2(b)).
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Statutory Forms, Notices and Lodgements
3.7
Forms evidencing completed works (for example Form 15 or Form 16) should be provided together with related documents to avoid delay in processing the final certificate (Form 21).
3.8
If the application lapses because the approval period has expired under section 95 of the Building Act 1975 (Qld), this contract also lapses.
5.5
Any Show Cause Notice or enforcement action required under any Act, Regulation or statutory instrument is charged on a reasonable cost-recovery basis.
5.8
A Certificate of Classification (Form 21) must be applied for and issued within two years of the Building Development Approval. If it is not issued for any reason — including insolvency, disappearance, or termination of this contract — the responsibilities of Apex under the contract cease, subject to the Building Act 1975 (Qld). Nothing in this agreement extends or shortens any limitation period that applies at law. Where a delay in applying for or obtaining the Certificate of Classification is caused by the Client, any additional work Apex is required to perform as a result is a variation under clause 4.
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Fees and Payment
The total lump sum fee (inclusive of GST) is as stated in the Quote and Fee Proposal for the Project.
Agreed fees
1.
The engagement fee and the assessment fee are payable before the private certifier commences the services, or within 7 days of the invoice, whichever is earlier. Work will not commence until those fees are paid. Inspection fees and other milestone fees are payable within 14 days of the invoice.
2.
Payment is made by EFT to the account details shown on the invoice, quoting the quote number as reference. Payment is not made until cleared funds are received.
3.
Additional fees may apply for items not included in the quote (see clause 5.6), such as amended plans, re-inspections, non-compliance and enforcement notices, additional consultant reports, council or authority fees, file transfer on a change of certifier, or formal meetings with authorities. All variations are advised in writing and charged, on a reasonable-cost basis, in addition to the lump sum fee.
4.
Overdue amounts accrue interest at 10% per annum, and the Client is liable for the reasonable costs of recovery of Apex Approvals.
5.
The assessment fee is non-refundable to the extent Apex has reasonably performed work under this agreement. If the Client cancels before assessment work has commenced, Apex may retain a reasonable administration and archiving fee of $550 and will refund the balance.
6.
Government, council and authority fees, including any fee payable on lodgement under the Planning Act 2016 (Qld), are payable by the Client in addition to the fees above, except where expressly included in the Fee Proposal.
7.
Performance Solutions and additional inspections. A change from a Deemed-to-Satisfy solution to a Performance Solution, and any inspection beyond those listed in the Inspection Schedule, are variation events under clause 4.2 and are charged in addition to the lump sum fee.
Payment terms
5.1
The fees are as set out in the Fee Proposal / Invoice, as varied under clause 4. The engagement fee and the assessment fee are payable before the services commence, or within 7 days of invoice, whichever is earlier; work will not commence until those fees are paid. Inspection fees and other milestone fees are payable within 14 days of invoice.
5.2
Overdue amounts accrue interest at 10% per annum, calculated daily, and the Client is liable for the reasonable costs of recovery of Apex (including legal costs on a reasonable basis).
5.3
The fees are inclusive of GST unless expressly stated to be exclusive. Where an amount is expressed to be exclusive of GST, GST is added. Government, council and authority fees, taxes, duties and disbursements — including any fee payable on lodgement under the Planning Act 2016 (Qld) — are payable by the Client except where expressly included in the Fee Proposal. Any fee component or disbursement separately itemised in the Fee Proposal, including any professional indemnity contribution, forms part of the fees payable under this agreement.
5.4
Cancellation before assessment commences. The assessment fee is non-refundable to the extent Apex has reasonably performed work, reflecting the time required to process plans and paperwork. If the Client cancels before assessment work has commenced, Apex may retain an administration and archiving fee of up to $550, together with the professional indemnity contribution and any government, council or authority fee already paid to, or committed with, the relevant authority on the Client's behalf, and will refund the balance within 14 days. Cancellation under this clause must be in writing. Cancellation or termination at any later time is governed by clause 13 and clause 5.10.
5.6
Additional fees apply for the following items where not included in the Base Fee: amended plans differing from the approved stamped plans; re-inspections of works that are unfinished, inaccessible, concealed or non-compliant, and inspections attended where the work was not ready for inspection; Form 61 non-compliance notices; Show Cause and Enforcement notices; formal meetings with authorities on the Client's behalf resulting from non-compliant works; Performance Solutions; owner-builder matters where the value of works exceeds the QBCC threshold; certificates submitted after the approval expiry date; assessment arising from pre-existing or unapproved building work under clause 2.8; the collation and transfer of the file on a change of building certifier or on termination; re-activation of a dormant file under clause 12.2; and supplying information to parties unrelated to the Project at the Client's request.
5.7
Council and authority applications beyond the building certification scope (including siting variations, building over or near infrastructure, and town-planning matters) are available on a reasonable fee-for-service basis.
5.9
Discretionary waiver. Apex may, in special circumstances and at its sole discretion, waive or reduce any fee or part of a fee as a goodwill gesture. Any such waiver:
(a)
must be in writing to be effective;
(b)
applies only to the specific fee and the specific matter identified in that writing; and
(c)
does not create a precedent, entitlement or course of dealing in respect of any other fee, any other matter, or any future engagement.
This clause is subject to clause 17.2 and does not limit any right of the Client that cannot be excluded under law.
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Discontinuance and Termination
Suspension of services
12.1
Subject always to the Building Act 1975 (Qld) and the Code of Conduct for Building Certifiers, Apex may suspend the services on written notice if any amount is overdue, or if the Client fails to provide information, access, consent or approvals reasonably required. Suspension does not extend to, and Apex will continue to perform, any statutory function it is required by law to perform, including the giving of a notice under the Building Act 1975 (Qld). Suspension does not affect accrued rights, and the reasonable costs of suspension and re-commencement are payable by the Client.
12.2
Dormant files. If the Project remains dormant for more than 6 months, Apex may, on written notice and subject to the Building Act 1975 (Qld), close the file and charge a reasonable re-activation fee to resume the services.
Termination
13.1
Except as otherwise provided in this clause, this agreement may only be terminated in accordance with the Building Act 1975 (Qld). The parties acknowledge that this restriction reflects the statutory framework governing the appointment and replacement of a building certifier under that Act, which regulates how an engagement may be brought to an end and requires the appointment of a replacement building certifier; it is not intended to limit any right of the Client that cannot be excluded under law.
13.2
On termination, the Client must comply with the Building Act 1975 (Qld) regarding notification of termination and the appointment of a replacement building certifier. Apex will transfer the file in accordance with that Act, and may charge the fee referred to in clause 5.6 for doing so.
13.3
On termination, the Client must pay, within 14 days: (a) all fees for services actually performed to the date of termination; (b) reasonable costs and disbursements committed by Apex that cannot reasonably be avoided; and (c) any statutory or authority fees already incurred. Apex is not entitled to fees for services not performed. Fees already held are applied to outlays and services rendered to the date of termination, and any balance is refunded. Apex will pay any refund due under this clause, apportioned in accordance with clause 5.10, within 14 days of the date of termination.
13.4
Apex may terminate by written notice if: (a) the Client fails to pay any amount by the due date; (b) the Client becomes insolvent or subject to any form of insolvency administration; (c) the Client breaches this agreement and, where the breach is capable of remedy, fails to remedy it within 14 days of notice; (d) a Building Development Approval cannot be issued within 6 months of the date of this contract; (e) building works do not commence within 60 days of the Building Development Approval being issued; (f) the Client does not permit the issue of the Certificate of Classification within 60 days of practical completion; (g) building works have commenced without a Building Development Approval being in force; or (h) the Client is unable to produce the registered owner's written consent within 14 days of a written request.
13.5
The Client may terminate this agreement by written notice, subject to and in accordance with the Building Act 1975 (Qld), in which case clause 13.3 applies. The Client's rights under clause 4.3 and clause 11.3 are not affected.
13.6
Termination takes effect when the notice is received. Termination does not affect accrued rights or remedies.
Apportionment and refunds
5.10
Apportionment and refunds on early termination. Where this agreement ends before the services are complete:
(a)
the fee for assessment services actually performed is calculated by reference to the assessment milestones stated in the Fee Proposal;
(b)
inspection fees are apportioned by reference to the inspections actually carried out against those listed in the Inspection Schedule, and any inspection fee for an inspection not carried out is refundable;
(c)
the professional indemnity contribution is earned on acceptance of this agreement, reflecting the professional indemnity exposure assumed on opening the file for the Project and which continues after the engagement ends, and is not refundable;
(d)
government, council and authority fees already paid to, or committed with, the relevant authority are not refundable; and
(e)
any refund due to the Client is paid within 14 days of the date of termination.
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Client Acknowledgements
By entering into the Engagement Agreement, the Client acknowledges and agrees that:
Apex and its private certifier are bound by the Building Act 1975 (Qld), the National Construction Code (edition in force in Queensland), the Building Regulation 2021 (Qld), the Planning Act 2016 (Qld), the Planning Regulation 2017 (Qld) and the Code of Conduct for Building Certifiers, and must act independently and in the public interest. Approval is not guaranteed.
All plans and information supplied are a true and accurate representation of the proposed works.
The Client holds all necessary authority. Where the Client is not the registered owner of the land, the Client has the registered owner's written consent to the making of the application and to the carrying out of the Project.
Planning approvals are the Client's responsibility. Where the Project requires a development permit, siting variation, referral-agency response or any other approval under the Planning Act 2016 (Qld), a Building Development Approval cannot be issued until that approval is in effect. Obtaining it is the Client's responsibility, and any resulting delay or additional cost is at the Client's cost.
Performance Solutions attract additional fees. Where any part of the Project changes from a Deemed-to-Satisfy solution to a Performance Solution, substantial additional assessment, consultant reports from competent persons, coordination and regulatory review are ordinarily required. This is a variation under clause 4.2.4 and is charged in addition to the lump sum fee.
Additional inspections are chargeable. Any inspection beyond those listed in the Inspection Schedule — including any re-inspection of work that is incomplete, inaccessible, concealed or non-compliant, and any inspection attended where the work was not ready — is charged as an additional fee.
Where two or more persons are named as Client, their obligations under this agreement are joint and several.
This agreement is governed by the laws of Queensland.
The full terms and conditions on this page form part of this agreement, including the liability provisions in clause 8.
On completion, the Client agrees to sign a written acknowledgement that the services have been delivered in accordance with the agreed scope, and should notify Apex in writing of any apparent error or omission within 14 days. This supports the professional indemnity arrangements of Apex and does not limit any right the Client has that cannot be excluded under law.
Where the Client is an owner builder, the Client is responsible for holding any owner builder permit required by the QBCC and for the owner builder's obligations under the Queensland Building and Construction Commission Act 1991 (Qld).
3.1
Apex and its private certifier are subject to the Building Act 1975 (Qld) and the Code of Conduct for Building Certifiers, are obligated by law to act independently and in the public interest, and must assess the Project on its merits and in accordance with law. Approval cannot be guaranteed and Apex may be required to act against the Client's interests. Apex cannot agree, as a condition of this engagement or otherwise, to approve the Project, to reach any particular outcome, or to refrain from performing any statutory function. Any such agreement would be of no effect. Nothing in this agreement, the Fee Proposal, or any conduct of the parties operates to limit the obligations of Apex or its private certifier under the Building Act 1975 (Qld) or the Code of Conduct for Building Certifiers.
3.4
On completion of the services, Apex will issue a completion notice, and the Client agrees to promptly sign a written acknowledgement that the services have been delivered in accordance with the agreed scope set out in this agreement. The Client should review each decision notice, certificate and completion notification promptly and notify Apex in writing of any apparent error or omission within 14 days. This clause assists early resolution and supports the professional indemnity arrangements of Apex; it does not limit any right of the Client that cannot be excluded under law, including the consumer guarantees under the Australian Consumer Law or any right under the Building Act 1975 (Qld).
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General Terms
Intellectual property and data
6.1
Nothing in this agreement affects the intellectual property rights of either party, except as set out in this clause.
6.2
The Client grants Apex a non-exclusive, royalty-free licence to use the data the Client provides to the extent reasonably necessary to perform the services and to comply with the record-keeping and statutory obligations of Apex.
6.3
The Client warrants that data it provides will not infringe the intellectual property rights of any person, and indemnifies Apex against any direct loss, cost or liability arising from a third-party claim that such data infringes intellectual property rights.
Privacy
7.1
Apex collects personal information from the Client to provide the services and to meet its obligations under the Building Act 1975 (Qld) and related laws, and handles personal information in accordance with the Privacy Act 1988 (Cth) and the Australian Privacy Principles.
7.2
The Client consents to Apex disclosing personal information to the local government, the QBCC, referral agencies, competent persons and other parties as reasonably required to perform the services or as authorised or required by law. The privacy collection notice of Apex is available on request.
Liability limitation and indemnity
8.1
Apex is not liable to the Client for any economic, indirect or consequential loss of any kind, including loss of rental income, loss of profit, project delay costs or opportunity costs.
8.2
The Client indemnifies Apex and its employees, officers and contractors against all claims, demands, expenses, loss or damage in respect of: (a) loss or damage to property, or death or personal injury, caused or contributed to by the Client; (b) a breach by the Client of this agreement; (c) a wilful, unlawful or negligent act or omission of the Client; (d) any third-party claim caused or contributed to by the Client; and (e) any claim arising from the Client not holding the registered owner's consent to the making of the application. The Client's liability under this indemnity is reduced proportionately to the extent that the loss or liability was caused or contributed to by Apex or any person for whom Apex is responsible.
8.3
Subject to clauses 8.5 and 17.5, and to any limit that applies under a professional standards scheme of which Apex or its certifier is a member (where applicable), the total aggregate liability of Apex to the Client under or in connection with this agreement, whether in contract, tort (including negligence), statute or otherwise, is limited to the amount Apex is able to recover under its professional indemnity insurance for the relevant claim; and where no amount is recoverable under that insurance, to the fees paid to Apex for the services to which the claim relates.
8.4
The Client releases Apex from claims arising from the Client's reliance on or use of the services in a manner not contemplated or authorised by the Building Act 1975 (Qld), or otherwise than in accordance with any exclusions or assumptions stated by Apex.
8.5
Nothing in this clause limits any liability that cannot be limited by law, including under the Australian Consumer Law.
8.6
The services are provided for the Client only. No person other than the Client may rely on the services, and this clause confers no benefit on, and creates no liability to, any third party.
Warranties
9.1
Each party represents and warrants that, as at the date of this agreement, all actions, conditions and authorisations required to enable it to enter into and perform this agreement have been done or obtained.
Force majeure
11.1
If a Force Majeure Event causes delay or failure by a party to perform, that party is not liable for the delay or failure, and its affected obligations are suspended until the event ceases.
11.2
The affected party must notify the other as soon as possible with particulars, the commencement date, an estimate of duration, and the means proposed to remedy the event, and must use reasonable diligence to resume performance.
11.3
If a Force Majeure delay exceeds 60 days, either party may terminate this agreement by written notice.
Confidential information
14.1
Subject to the Building Act 1975 (Qld), each party will keep the other's confidential information secure, will not use it except as contemplated by this agreement, and will not disclose it to any third party without prior written consent.
Insurance
15.1
Apex maintains, at all times during the term, the insurances required by the Building Act 1975 (Qld) and the Building Regulation 2021 (Qld), including professional indemnity insurance and public liability insurance complying with the policy features and minimum amounts prescribed by that Regulation. Current policy limits are stated in the certificate of currency, which is available to the Client on reasonable written request.
15.2
Apex will not do anything that would render any such policy void or unenforceable, and will produce evidence of the insurances on reasonable written request.
Dispute resolution
16.1
A party must not commence court proceedings (except for urgent injunctive or equitable relief) in respect of a dispute unless it first attempts to resolve the dispute by negotiation and then mediation under this clause. This clause does not affect either party's right to make a complaint to, or to seek review by, the QBCC or any other regulator, or to pursue any right of appeal or review under the Building Act 1975 (Qld) or the Planning Act 2016 (Qld).
16.2
A party claiming a dispute must give written notice specifying the dispute. The parties must negotiate in good faith within 10 business days of that notice.
16.3
If negotiation fails, either party may refer the dispute to mediation under the rules of the Resolution Institute, to a mediator agreed by the parties or, failing agreement within 5 business days, nominated by the Resolution Institute. Each party bears its own costs and the parties share the mediator's costs equally.
16.4
Each party must, where possible, continue to perform its obligations during any dispute process.
Miscellaneous
17.1
Entire agreement: This agreement (including these Terms of Engagement and the Fee Proposal) is the entire agreement between the parties about its subject matter and supersedes prior understandings. This clause does not exclude liability for any misleading or deceptive conduct or any right under the Australian Consumer Law.
17.2
Waiver: A waiver must be in writing signed by the party giving it and is effective only to the extent set out. Failure to exercise a right is not a waiver.
17.3
Severability: If any provision is invalid or unenforceable, it may be severed and the remainder continues, unless severance would materially change the intended effect of the agreement.
17.4
Governing law: This agreement is governed by the laws of Queensland, and the parties submit to the exclusive jurisdiction of the courts of Queensland.
17.5
Consumer law: Nothing in this agreement excludes, restricts or modifies any guarantee, right or remedy under the Competition and Consumer Act 2010 (Cth) or the Fair Trading Act 1989 (Qld) that cannot lawfully be excluded. Where permitted by law, the liability of Apex for breach of a non-excludable guarantee is limited, at the election of Apex, to resupplying the services or paying the cost of resupply.
17.6
Assignment: Neither party may assign this agreement without the other's prior written consent, which must not be unreasonably withheld.
17.7
Counterparts and electronic execution: This agreement may be executed in counterparts and by electronic means under the Electronic Transactions (Queensland) Act 2001, each of which is an original and together constitute one agreement.
17.8
Joint and several liability: Where the Client comprises more than one person, this agreement binds them jointly and each of them severally.
Notices
18.1
A notice must be in writing in English, signed by an authorised person, and hand delivered, sent by prepaid post, or emailed to the address in the Engagement Agreement.
18.2
A notice is deemed received: (a) if hand delivered, on delivery; (b) if posted, two business days after posting; (c) if emailed, at the time deemed under the Electronic Transactions (Queensland) Act 2001. If deemed received on a non-business day or after 5:00 pm, it is deemed received at 9:00 am on the next business day.
Interpretation
Headings do not affect interpretation.
The singular includes the plural and vice versa, and words of one gender include any gender.
A reference to a party includes its executors, administrators, successors and permitted assigns; a reference to a person includes any entity.
A reference to this agreement includes all schedules and annexures; a reference to legislation includes amendments, replacements and subordinate legislation.
An expression defined in the Building Act 1975 (Qld) or the Planning Act 2016 (Qld) has the meaning given by that Act.
The meaning of general words is not limited by specific examples introduced by 'including', 'for example' or similar expressions.
A provision is not construed against a party only because that party drafted it.
Definitions
Act
The Building Act 1975 (Qld) and, where the context requires, the Planning Act 2016 (Qld).
Base Fee
The total lump sum fee stated in the Agreed Fees section of the Engagement Agreement and the Fee Proposal, before any variation under clause 4 or any additional fee under clause 5.6.
Apex / Building Certifier
Apex Approvals Pty Ltd (ABN 73 695 424 438), holder of a building certifier's licence under the Building Act 1975 (Qld), together with its Building Certification Team and appropriately licensed private certifier(s).
Private certifier
The individual appropriately licensed private certifier who performs the functions required by law to be performed by a licensed private certifier.
Building Development Approval (BDA)
A development approval for building work granted under the Building Act 1975 (Qld) and/or the Planning Act 2016 (Qld). References to a 'decision notice' or 'approval' mean a BDA unless the context otherwise requires.
Building Quality
Any matter that could be a defective item under a contract between the Client and another party (such as a builder), but not matters of conformance with the NCC or applicable technical standards.
Business Day
A day that is not a Saturday, Sunday or public holiday in Queensland.
Certificate of Classification (Form 21)
A certificate issued under the Building Act 1975 (Qld) on satisfactory completion of building works, confirming the building's classification.
Client
The person or persons named as client on the Engagement Agreement, or their authorised agent. Where more than one person is named, they are bound jointly and each of them severally.
Code of Conduct
The Code of Conduct for Building Certifiers approved under the Building Act 1975 (Qld).
Data
Information relating to this agreement and the services, including plans, specifications, documents, reports and correspondence in any form.
Decision Notice (Form 11)
The decision notice recording the outcome of the building development application — approval (BDA) or refusal — issued under the Building Act 1975 (Qld) and, where the building work is assessable development requiring a development permit, under the Planning Act 2016 (Qld).
Fee
The fees and charges in the Fee Proposal / Invoice, as varied under clause 4 or clause 5.
Force Majeure Event
An event beyond a party's reasonable control, including acts of God, natural disaster, war, terrorism, riot, sabotage or pandemic, that prevents timely performance.
Form 15 / Form 16
Certificates issued under the Building Act 1975 (Qld) by competent persons in respect of design or inspection of building work.
Form 61
A non-compliance notice under the Building Act 1975 (Qld) for building work that is incomplete, differs from approved plans, or is non-compliant.
Inspection Schedule
The schedule of mandatory and agreed inspections for the Project set out in the Fee Proposal, being the inspections included in the Base Fee. Inspections beyond that schedule are charged under clause 4.2.7 or clause 5.6.
NCC
The National Construction Code, being the edition adopted and in force in Queensland from time to time. A transition to a new edition is a variation event under clause 4.2.6.
Owner Builder
A person holding a current owner builder permit issued by the QBCC under the Queensland Building and Construction Commission Act 1991 (Qld).
Owner's Consent
The registered owner's written consent to the making of the building development application and to the carrying out of the Project, where the Client is not the registered owner.
Performance Solution
A solution that complies with the NCC Performance Requirements otherwise than by the Deemed-to-Satisfy Provisions.
Project
The building works described in the Engagement Agreement.
QBCC
The Queensland Building and Construction Commission.
Queensland Development Code (QDC)
The Queensland Development Code made under the Building Act 1975 (Qld).
Services
The Development Application Assessment Services described in clause 1 and the Engagement Agreement.
Term
The period from acceptance of this agreement until completion of the services or termination, whichever occurs first.
Termination Money
The money owing to Apex on termination, being fees for services actually performed, reasonable committed and unavoidable costs, and statutory or authority fees already incurred. It does not include fees for services not performed.
Consumer rights preserved
Nothing in these Terms of Engagement excludes, restricts or modifies any right or remedy the Client has under the Australian Consumer Law, the Building Act 1975 (Qld) or any other law that cannot lawfully be excluded.
Apex Approvals Pty Ltd · ABN 73 695 424 438 · Terms of Engagement — Residential (Class 1 and 10), Queensland. Published for reference. The executed Engagement Agreement and Fee Proposal issued for a particular Project prevail over this page.