Victorian Plumbers Endorsement

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Maximillian Baldwin
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1 Victorian Plumbers Endorsement This Endorsement only forms part when Victorian Plumbers Endorsement is shown in the schedule and is limited to the period of insurance indicated. The following Definitions are added to the Combined General Liability Insurance policy. Ministerial order ministerial order means the Licensed Plumbers General Insurance Order 2002 made under Sections 221ZQ and 221ZT of the Victorian Building Act 1993 taking effect on 15 July Plumbing work plumbing work has the same meaning as it has in Section 221C of the Building Act 1993 (Vic). The following Exclusions are added to the Combined General Liability Insurance policy. Exclusions 5.16 and 5.18 are deleted in full and replaced as follows: 5. Exclusions We will not pay anything in respect of: 5.16 Professional liability any liability of whatsoever nature directly or indirectly caused by, in connection with or contributed to by or arising from the rendering or failure to render professional advice or service by the insured, or any error or omission in connection therewith. However, this Exclusion shall not apply to: (i) (ii) (iii) the insured s liability in respect of personal injury or property damage resulting from the provision of professional advice or services, or any error or omission in connection with the insured s products which is not given for a fee; or the rendering or failure to render professional advice by any employee to provide first aid or other medical services at the insured s premises; or any plumbing work carried out in Victoria Repair and replacement any liability of whatsoever nature directly or indirectly caused by, in connection with or contributed to by or arising from: the cost of rectifying defective work carried out by or on behalf of the insured; property damage to any of the insured s products causing personal injury or property damage; and the costs or expenses of recalling, removing, repairing, recovering, altering or replacing the insured s products arising from a defect in or an error in connection with the sale or supply of such products or the guaranteed performance of the insured s products or the unsuitability thereof for the use for which they are supplied. However, this Exclusion shall not apply to any plumbing work carried out in Victoria. Page 1 of 8

2 The following Special Conditions are added to the Combined General Liability Insurance policy. 7. Special Conditions 7.1 Cancellation Notwithstanding General Condition 6.3 Cancellation Zurich agrees that the cancellation of this Endorsement: will only take effect 30 days after Zurich gives both the Plumbing Industry Commission and the insured notice in writing of the cancellation; and has no effect on any of our obligations under this policy in relation to any personal injury or property damage that occurred while the Endorsement was in force. 7.2 Notification of claims settled Zurich and the insured both agree that we will notify the Plumbing Industry Commission in writing in the manner required by the Plumbing Industry Commission of the settling or payment of any claim under this Endorsement. 7.3 Ministerial order to prevail Zurich agrees that if any term of this Endorsement conflicts, or is inconsistent, with the ministerial order, then this Endorsement is to be read and to be enforceable as if it complied with that order. 7.4 We will comply with court orders Zurich agrees to comply with any order made against the insured by a court, the Domestic Building Tribunal, the Administrative Appeals Tribunal or any other competent judicial body, in respect of any liability for which the insured is indemnified under this Endorsement (including any deductible that the insured may be obliged to pay to us). Page 2 of 10

3 Consumer Protection Victorian Plumbers This Endorsement only forms part when Victorian Plumbers Endorsement is shown in the schedule and is limited to the period of insurance indicated. 1. Definitions The following Definitions shall apply to words used in this Endorsement applying to Defects Liability Part A and Trade Practices Liability Part B. 1.1 Building owner building owner means the person for whom plumbing work has been, is being, or is about to be, carried out and includes: any occupier of the land, building or home where the plumbing work is carried out; any person who is the owner for the time being of such land, building or home; if the land, building or home is subject to the Subdivision Act 1988 (Vic), the body corporate for that land, building or home; any assignee of the building owner s rights under a contract; any person who has contracted with another person to provide that plumbing work. 1.2 Completed plumbing work completed plumbing work means: plumbing work for which the insured has issued a compliance certificate; or where the insured does not issue a compliance certificate, for plumbing work the insured performed but only after the insured stopped carrying out that work. 1.3 Compliance certificate compliance certificate means a certificate referred to in Section 221ZH of the Building Act 1993 (Vic). 1.4 Contract contract means a written agreement to carry out plumbing work and includes a domestic building contract or other building contract that includes plumbing work. 1.5 Defects in plumbing work defects in plumbing work means: a failure to carry out the plumbing work in a proper and workmanlike manner and in accordance with any plans and specifications set out in the contract; or a failure to use materials in the plumbing work that are good and suitable for the purpose for which they are used; or the use of materials in the plumbing work that are not new (unless the contract permits the use of materials that are not new); or a failure to carry out the plumbing work in accordance with, and in compliance with, all laws and legal requirements including, without limiting the generality of this paragraph, the Building Act 1993 (Vic) and any regulations made under that Act; or a failure to carry out the plumbing work with reasonable care and skill and, in the case of domestic plumbing work, a failure to complete the plumbing work: by the date (or within the period) specified by the contract; or within a reasonable time, if no date (or period) is specified; or Page 3 of 10

4 1.5.6 if the contract states the particular purpose for which the plumbing work is required, or the result which the building owner wishes the work to achieve, so as to show that the building owner relies on the plumber s skill and judgment, a failure to ensure that the plumbing work and any material used in carrying out the plumbing work: are fit for that purpose; or are of such a nature and quality that they will achieve that result; or a failure to maintain a standard or quality of plumbing work specified in the contract. Provided that a reference to any material in sub-clause 1.5.2, or does not include any material that is supplied by the building owner (or the building owner s agent). 1.6 Defect liability defect liability means any liability to pay for the cost of rectifying any defects in plumbing work. 1.7 Disappearance disappearance means cannot be found after due search and inquiry. 1.8 Domestic plumbing work domestic plumbing work means plumbing work performed or intended to be performed on or in relation to a home or any building or structure on land on which a home is or is intended to be situated. 1.9 Home home means any residential premises and includes any part of a commercial or industrial premises that is used as a residential premises and also includes any houseboat that is less than 8 metres in length, but does not include: any residence that is not intended for permanent habitation; or a rooming house within the meaning of the Rooming Houses Act 1990 (Vic); or a motel, residential club, residential hotel or residential part of licensed premises under the Liquor Act 1987 (Vic); or a nursing home, hospital or accommodation associated with a hospital; or any residence that the regulations made under the Domestic Building Contracts and Tribunal Act 1995 (Vic) state is not a home for the purposes of the definition of home in the Act Insolvent under administration insolvent under administration means a person who is a bankrupt in respect of a bankruptcy from which the person has not been discharged and includes; a person who has executed a deed of arrangement under Part X of the Bankruptcy Act (Cth), (or the corresponding provisions of the law of another jurisdiction) where the terms of the deed have not been fully complied with; and a person whose creditors have accepted a composition under Part X of the Bankruptcy Act (Cth), (or the corresponding provisions of the law of another jurisdiction) where a final payment has not been made under that composition Ministerial order ministerial order means the Licensed Plumbers General Insurance Order 2002 made under Sections 221ZQ and 221ZT of the Victorian Building Act 1993 taking effect on 15 July Non-domestic plumbing work non-domestic plumbing work means plumbing work that is not domestic plumbing work Plumbing work plumbing work has the same meaning as it has in Section 221C of the Building Act 1993 (Vic). Page 4 of 10

5 1.14 Subcontractors(s) For the purpose of this Endorsement only subcontractor(s) means those subcontractors contracted by the insured to carry out domestic plumbing work Trade practices liability trade practices liability means any liability to pay for the cost of rectifying any domestic plumbing work that arises as a result of conduct by the insured in connection with the domestic plumbing work that contravenes Section 18 or 29 of the Australian Consumer Law or Section 52 or 53 of the Trade Practices Act 1974 (Cth) or Section 11 or 12 of the Fair Trading Act 1985 (Vic). 2. Defect Liability Part A Zurich will pay all amounts that the insured becomes legally liable to pay for defect liability that results from the insured s completed plumbing work performed in Victoria during the period of insurance. Provided that for each claim or series of claims in relation to a compliance certificate the cover is limited to the Limit of Liability for domestic plumbing work of $50,000 or for non-domestic plumbing work $100,000 or the equivalent to your annual turnover (calculated as required by the ministerial order) whichever is the greater for any one claim or series of claims relating to a compliance certificate to a maximum of $5,000, Exclusion that applies to Part A This Endorsement does not cover the insured for any loss or damage giving rise to a claim under Part A resulting from a product defect, which for the purposes of this Exclusion, means a defect in any appliance, material, substance or other thing that was supplied or used by the insured in connection with the insured s plumbing business. Provided that: 3.1 Zurich bears the onus of establishing that the claim (or part of a claim) is based on a product defect; and 3.2 Zurich agrees that nothing in this Exclusion removes the cover given to the insured by this Endorsement in relation to the insured supplying or using any appliance, material, substance or other thing that the insured were aware was defective, or that the insured should reasonably have been aware was defective. In addition to this Exclusion, please refer to the Exclusions that apply to Part A and Part B and Exclusions which are applicable to the whole policy. 4. Trade Practices Liability Part B Zurich will pay all amounts that the insured becomes legally liable to pay for trade practices liability that results from the insured s completed plumbing work performed in Victoria during the period of insurance. Provided that for each claim or series of claims in relation to a compliance certificate the cover is limited to the Limit of Liability for domestic plumbing work of $50,000 or for non-domestic plumbing work $100,000 or the equivalent to your annual turnover (calculated as required by the ministerial order) whichever is the greater for any one claim or series of claims relating to a compliance certificate to a maximum of $5,000, Extensions of Cover that apply to Part A and Part B 5.1 Additional payments In addition to the Limit of Liability, Zurich will pay under this Endorsement as additional payments all the reasonable legal costs and expenses incurred with Zurich s written consent associated with the successful enforcement of a claim against the insured or Zurich. However, this Endorsement does not cover the insured in respect of the legal costs of any person making a claim against the insured or Zurich that are not directly or indirectly related: to the enforcement of the Endorsement; or to a liability in respect of which the insured is covered under this Endorsement. Page 5 of 10

6 Provided that: (i) (ii) if the Limit of Liability is less than the total amount paid or payable to settle or dispose of a claim then Zurich will only pay a proportion of these additional payments, and Zurich s proportion will be that proportion that the Limit of Liability represents to the total amount paid or payable to settle or dispose of the claim; and Zurich will not pay for any additional payments that are incurred after Zurich has paid or agreed to pay an amount equal to the Limit of Liability. 5.2 Defects / Non-completion / Consequential financial loss In the case of domestic plumbing work Zurich will also indemnify the insured for any liability arising from: any consequential financial loss reasonably incurred by the building owner as a result of any defects or non-completion of the insured s plumbing work (as described in paragraph 5.2.2), including but not limited to: the loss of any deposit or progress payment (or any part of any deposit or progress payment); and the cost of alternative accommodation, removal and storage costs that are reasonably and necessarily incurred; and non-completion of the plumbing work due to: the death or legal incapacity of the insured s plumbing contractor; the disappearance of the insured s plumbing contractor; the insured becoming insolvent under administration; the cancellation or suspension of the insured s licence as a licensed plumber under the Building Act 1993 (Vic); or the early termination of the contract by the building owner as a result of the insured s wrongful failure or refusal to complete the plumbing work also applies to any contract for both domestic and non-domestic plumbing work in which the non-domestic plumbing work component does not exceed 20% of the total contract value. Provided that in respect of each claim or series of claims in relation to a compliance certificate the cover is limited to the Limit of Liability for defect liability or trade practices liability as the case may be. 5.3 Subcontractors(s) The cover provided by this Endorsement to the insured, is extended to cover any subcontractor, but only for the subcontractor s liability that arises out of the work performed for the insured. 6. Limitations of Cover that apply to Part A and Part B 6.1 Six (6) year limitation on claims Zurich will not accept any claims first notified to us after the expiration of six (6) years from: the date of issue of a compliance certificate; or if the insured did not issue a compliance certificate in relation to the work that is insured, six (6) years after the insured stopped carrying out that work. 6.2 Deductible The insured is liable for the deductible shown in the schedule for each claim. This deductible will be payable by the insured after the claim has been paid by Zurich to the building owner. The insured is not liable to pay a deductible more than once in relation to any claim comprising more than one defect or two or more claims that relate to the same defect. Page 6 of 10

7 6.3 Limitation concerning non-completion of work If the insured fails to complete domestic plumbing work for any reason, then this Endorsement does not cover the insured for claims for the whole or a specified part of any payment made under a contract that exceeds the value of the work completed at the time of payment. 6.4 Limitation for common property This clause applies if a claim is paid by Zurich in relation to the common property of a building or complex of multiple homes and the property on which the building or complex stands, and on which plumbing work is carried out, is subject to the Subdivision Act 1988 (Vic). Zurich will reduce the amount paid under this endorsement in respect of any one home in the building or complex by an amount calculated by dividing the amount of the claim paid by us by the number of homes in the building or complex. 7. Exclusions that apply to Part A and Part B This Endorsement does not cover: 7.1 Wear and Tear / Maintenance of work fair wear, tear or depreciation of the insured s plumbing work; or a failure by the building owner to reasonably maintain the insured s plumbing work. 7.2 Consequential financial loss for non-domestic plumbing work in relation to non-domestic plumbing work, any consequential financial loss. 7.3 Liquidated damages for delay claims for liquidated damages for delay, or damages for delay, that may arise under a contract. However, we agree that nothing in this clause removes the cover given to the insured by this Endorsement in relation to any increase in rectification cost caused by a delay. In addition to these Exclusions, please refer to the Exclusions which are applicable to the whole policy. 8. Special Terms and Conditions that apply to Part A and Part B 8.1 Co-operation Notwithstanding the general terms and General Conditions of this policy: The insured agrees, in relation to a claim or prospective claim: to make reasonable efforts to assist and inform Zurich; and to attend the relevant building site for the purpose of inspecting, rectifying or completing plumbing work (unless the building owner refuses the insured access to the site) Zurich may reduce the amount of a claim by a building owner by an amount that reasonably represents the cost resulting from an unreasonable refusal by the building owner to give the insured access to a building site if we have asked the insured to attend the site. 8.2 Deemed acceptance of claims In relation to domestic plumbing work only and notwithstanding the general terms and General Conditions, Zurich agrees to accept liability for a claim if Zurich does not notify the person making the claim within 90 days of receiving the claim in writing that Zurich accepts or disputes the claim, unless Zurich obtains an extension of time from the person in writing or from the Domestic Building Tribunal. Page 7 of 10

8 8.3 Misrepresentation, Fraud or Non-disclosure In relation to domestic plumbing work only: Zurich agrees that we will not refuse to pay a claim under this Endorsement on the ground that this Endorsement was obtained by misrepresentation, fraud or nondisclosure by the insured or anyone acting on the insured behalf; The insured agrees that if we make a payment under this Endorsement to, or for the benefit of, a building owner under the circumstances contemplated by this clause, by doing so Zurich is not restricting Zurich s rights to recover that payment from the insured. 8.4 Right of recovery Where a payment is made under this Endorsement to, or for the benefit of, a building owner Zurich may choose to recover that payment from the insured in the following circumstances: payments made due to non-completion of domestic plumbing work as a result of: the disappearance of the insured s plumbing contractor; the insured becoming insolvent under administration; the cancellation or suspension of the insured s licence as a licensed plumber under the Building Act 1993 (Vic); or the early termination of the contract by the building owner as a result of the insured s wrongful failure or refusal to complete the plumbing work payments made due to defects in domestic plumbing work. 8.5 Certificate of currency In relation to domestic plumbing work only and notwithstanding the General Conditions of this policy: if Zurich gives the insured a certificate stating that the insured is covered by insurance, Zurich agrees that we will not refuse to pay a claim under this Endorsement on the ground that the insured has not paid the premium for the insurance; the insured agrees that if Zurich makes a payment under this Endorsement to, or for the benefit of, a building owner under the circumstances contemplated by this clause, by doing so Zurich is not restricting Zurich s right to recover that payment from the insured. 8.6 Deemed notice of defects Zurich agrees that if a person gives notice of a defect in writing to the insured or Zurich, that person is to be taken for the purposes of this Endorsement to have given notice of every defect of which the defect notified is directly or indirectly related, whether or not the claim in respect of the defect that was actually notified has been settled. 8.7 Claimant may enforce endorsement Zurich and the insured both agree: that a person who is entitled to claim against the insured in respect of any liability for which the insured is indemnified under this Endorsement, may enforce this Endorsement directly against Zurich for the person s own benefit if: any event listed in clause 5 of the ministerial order occurs; or the insured refuses to make a claim against Zurich; or there is an irretrievable breakdown of communication between the insured and Zurich; and that for the purpose of such enforcement the person has the same rights and entitlements as the insured would have had under any legislation applicable to the insured; that Zurich will pay to the person the full amount of any liability for which the insured is indemnified under this Endorsement despite any failure by the insured to pay any deductible that the insured is required to pay. Page 8 of 10

9 8.8 Section 54 of Insurance Contracts Act Zurich acknowledges that Section 54 of the Insurance Contracts Act 1984 (Cth) applies to this Endorsement; Despite 8.8.1, Zurich agrees that we will not rely on Section 54 to reduce Zurich s liability under this Endorsement or to reduce any amount that is otherwise payable in respect of a claim by reason only of a delay in a claim being notified to Zurich if: the person who makes the claim notifies the insured, either orally or in writing; or that person or the insured notify Zurich in writing; within 180 days of the date when the person first becomes aware, or might reasonably be expected to have become aware, of some fact or circumstance that might give rise to the claim. Provided that nothing in the above restricts the operation of Limitations of Cover that apply to Part A and Part B, 6.1 Six (6) year limitation on claims. Page 9 of 10

10 ZU V2 0114/12 - PCUS Zurich Australian Insurance Limited ABN , AFS Licence No: Head Office: 5 Blue Street, North Sydney NSW 2060 Client Enquiries Telephone: Page 10 of 10

Domestic Construction

qbe AUSTRALIA Domestic Construction Insurance Policy Residential Builders South Australia QM1278 This Policy is underwritten by QBE Insurance (Australia) Limited ABN 78 003 191 035 of 82 Pitt Street, Sydney.