7    Application of Act

(1)   Subject to this section, this Act applies to any construction contract, whether written or oral, or partly written and partly oral, and so applies even if the contract is expressed to be governed by the law of a jurisdiction other than New South Wales.

(2)   This Act does not apply to:

(a)    a construction contract that forms part of a loan agreement, a contract of guarantee or a contract of insurance under which a recognised financial institution undertakes:

(i)            to lend money or to repay money lent, or

(ii)          to guarantee payment of money owing or repayment of money lent, or

(iii)         to provide an indemnity with respect to construction work carried out, or related goods and services supplied, under the construction contract, or

(b)   a construction contract for the carrying out of residential building work (within the meaning of the Home Building Act 1989 ) on such part of any premises as the party for whom the work is carried out resides in or proposes to reside in, or

(c)    a construction contract under which it is agreed that the consideration payable for construction work carried out under the contract, or for related goods and services supplied under the contract, is to be calculated otherwise than by reference to the value of the work carried out or the value of the goods and services supplied.

(3)   This Act does not apply to a construction contract to the extent to which it contains:

(a)    provisions under which a party undertakes to carry out construction work, or supply related goods and services, as an employee (within the meaning of the Industrial Relations Act 1996 ) of the party for whom the work is to be carried out or the related goods and services are to be supplied, or

(b)   provisions under which a party undertakes to carry out construction work, or to supply related goods and services, as a condition of a loan agreement with a recognised financial institution, or

(c)    provisions under which a party undertakes:

(i)            to lend money or to repay money lent, or

(ii)          to guarantee payment of money owing or repayment of money lent, or

(iii)         to provide an indemnity with respect to construction work carried out, or related goods and services supplied, under the construction contract.

(4)   This Act does not apply to a construction contract to the extent to which it deals with:

(a)    construction work carried out outside New South Wales, and

(b)   related goods and services supplied in respect of construction work carried out outside New South Wales.

(5)   This Act does not apply to any construction contract, or class of construction contracts, prescribed by the regulations for the purposes of this section.

Levadetes v Iberian Artisans [2009] NSWSC 641: McDougall J
KEY ISSUE: whether a contract or arrangement - whether "construction contract" was "for the carrying out of residential building work."

Duynstee v Dickens & Dickens [2009] NSWSC 292: RA Hulme J
KEY ISSUE:whether contract for fire protection of boundary fence excluded under s 7(2)(b)

Shorten v David Hurst Constructions Pty Ltd (ACN 107 042 688) [2008] NSWCA 134: Hodgson JA Basten JA Bell JA
KEY ISSUE: contract for construction of residential units, one of which intended to be developer’s residence – whether contract excluded under s 7(2)(b)

Brian Leigh Smith & Anor v Coastivity Pty Ltd [2008] NSWSC 313: McDougall J
KEY ISSUE: whether a construction contract to which the Act applied existed – definition of “related goods and services” – whether consideration for related goods and services was calculated other than by reference to the value of the goods and services supplied

Zurich Specialities London Ltd v Thiess Pty Ltd [2008] NSWSC 1010: Bergin J
KEY ISSUE: construction of insurance policy - provision requiring insured to take reasonable precautions to safeguard subject matter insured from loss or damage - whether such provision is a construction contract between the insured and insurer

Over Fifty Mutual Friendly Society Ltd & Anor v Smithies & Ors [2007] NSWSC 291: Einstein J
KEY ISSUE: construction contracts forming part of a loan agreement with a recognised financial institution

Biseja v NSI Group [2006] NSWSC 835: McDougall J
KEY ISSUE: whether s 7(2)(c) of Act applicable - whether consideration was to be calculated by the value of services

Shell Refining (Australia) Pty Limited v A J Mayr Engineering Pty Limited [2006] NSWSC 94: Bergin J
KEY ISSUE: whether progress claims for the provision of related goods and services in VIC in respect of construction work in NSW are able to be made under NSW Act

Acclaim Building Management Pty Ltd v Loewenthal [2006] NSWDC 29: Johnstone DCJ
KEY ISSUE: whether a contract is excluded by S7(2)(b) – when intention to reside should be formed

Walter Construction Group v CPL (Surry Hills) Pty Ltd [2003] NSWSC 266 (9 April 2003) : Nicholas J
KEY ISSUES: whether payment claim prematurely made – whether claim including items not relating to construction work valid – whether the Act applies – whether the issue of the payment claim was misleading or deceptive

Consolidated Constructions Pty Ltd v Ettamogah Pub [2004] NSWSC 110 (11 March 2004) : McDougall J
KEY ISSUES: whether s7(2)(a) applicable – whether plaintiff may serve a payment claim under s13 – whether progress payment has same meaning in Act as it does under the construction contract

Austruc v ACA; ACA v Sarlos & Anor [2004] NSWSC 131 (11 March 2004) : McDougall J
KEY ISSUES: whether slip rule applicable – whether contract formed part of loan agreement – whether adjudicator permitted to consider statutory declaration attached to adjudication application – whether adjudicator required to give notice of intention to rely upon statutory declaration – whether adjudicator required to give respondent opportunity to respond to statutory declaration

Brambles Australia Ltd v Philip Davenport & Ors [2004] NSWSC 120 (12 March 2004) : Einstein J
KEY ISSUES: whether, and if so to what extent, judicial review of adjudications is available – whether the consideration payable for construction work carried out under the contract or for related goods and services supplied under the contract was to be calculated by reference to the value of the work carried out or the value of the goods and services supplied

ACA v Sullivan & Anor; Austruc v ACA [2004] NSWSC 304 (21 April 2004) : MsDougall J
KEY ISSUES: whether construction contract formed part of loan agreement

Corbett Court v Quasar [2004] NSWSC 1174 (25 November 2004) : McDougall J
KEY ISSUES: whether tripartite deed a loan agreement within s7(2)(a)(i) of the Act