Enforceable undertaking practitioner guide
In the context of the Building Act, an enforceable undertaking is a written agreement that is voluntarily given by a practitioner to the VBA to address conduct or issues raised in the show cause notice.
An enforceable undertaking may require the practitioner to:
- do a specified thing, including rectifying or completing building or protection work
- refrain from doing a specified thing
- arrange for another practitioner to rectify or complete building or protection work
- pay an amount to the owner sufficient to rectify or complete specified building work
- not undertake certain building work until they complete specific training.
By accepting an enforceable undertaking, the VBA will agree to do one or more of the following in relation to taking proposed disciplinary action against a practitioner following a show cause process:
- defer taking the proposed disciplinary action for a specified period
- take disciplinary action that the VBA considers to be less serious than the proposed disciplinary action
- take no further action.
The practitioner will be given the opportunity to discuss the contents of an enforceable undertaking with the VBA, before the VBA formally makes an offer to enter into an enforceable undertaking with the practitioner.
If the VBA accepts a proposed undertaking signed by the practitioner, the practitioner will be provided with a copy of a formal written undertaking.
When can a practitioner offer an enforceable undertaking?
An enforceable undertaking may be entered into as an alternative to disciplinary action and may be offered by a practitioner at any time prior to the VBA finalising its determination on a show cause notice.
Varying or withdrawing an accepted enforceable undertaking
A practitioner may only vary or withdraw an enforceable undertaking if they have first obtained the written consent of the VBA.
If the VBA does not consent to withdrawing or varying the undertaking, it will remain in force. This means the practitioner will be required to comply with the undertaking, as originally provided, until such time as the VBA agrees to release the practitioner from the undertaking.
Failure to comply with an enforceable undertaking
If the VBA considers that a practitioner has failed to comply with an enforceable undertaking it may apply to a court for an order directing the practitioner to do one or more of the following:
- comply with the undertaking
- carry out building work or protection work
- pay an amount up to the equivalent amount of any financial benefit the practitioner has obtained (either directly or indirectly) from a failure to comply with the undertaking
- compensate any person who has suffered loss, injury or damage as a result of the practitioner’s failure to comply with the undertaking.
If the VBA commences proceedings in court against a practitioner, in order to enforce an undertaking, the practitioner may be required to pay the VBA’s legal costs.
Failure to comply with an enforceable undertaking is also a ground for the VBA to take disciplinary action against a practitioner.
Register of Undertakings
Once an enforceable undertaking is accepted by the VBA, a copy of the undertaking will be provided to the practitioner and must be registered on a Register of Undertakings.
This register must include the name and address of the practitioner who gave the undertaking, a copy of the undertaking and the date of the undertaking.
When an accepted enforceable undertaking ends
The VBA will only accept enforceable undertakings that have a defined end point.
An enforceable undertaking end point will be agreed in writing during the process of acceptance by the VBA.
An end point could comprise one or more actions and/or a specific point in time or date.