Month: May 2017

Statutory Demands: Another way to collect your debts!

Posted on , updated on by snsadmin

Not many people are aware of what a Statutory Demand is and how it can help them.

If your debtor is a company and you have supplied goods to them, you can issue the debtor with a Statutory Demand.

Instead of issuing proceedings in Court, you can serve a Statutory Demand on the debtor if:

The debt is OVER AUD$2,000; and
There is NO dispute over the amount owing and the supply of goods or services.
If you do serve a Statutory Demand, the debtor has 21 days to pay the debt. If the debtor disputes the Statutory Demand, it then can to apply to the Supreme Court to have the Statutory Demand set aside within that 21 day period.

If they do neither of the above – then there is a presumption that the company is insolvent – which places you into a position to wind them up (or put them into liquidation).

If the debtor wants to stay in business and there is no basis upon which it can apply to the Supreme Court to have the Statutory Demand set aside, this process is significantly cheaper than issuing a proceeding in Court.

How can we help?

After being provided with copies of the invoices, we can draft a Statutory Demand for you. You will have to swear on an affidavit to say the goods and the invoice(s) have been delivered and the money is still outstanding and there is no dispute as to the amount owed.

The first step is easy, call us on 9555-7233 or email us and we will begin the process for you.

This article provides information that is general in nature and is not a substitute for legal advice.

Expert evidence – in building disputes

Posted on , updated on by snsadmin
The following is the link to the VCAT Practice Note which sets out the requirements for expert evidence.
file:///C:/Users/RJH/Downloads/practice_note_vcat_2_expert_evidence-effective_1_october_2014_0.pdf
We recommend that every Owner undertaking building works (unless they are a qualified experienced builder or similar) engage someone with experience to act as “certifier” or “building consultant” to assure them, the Owner, that their builder’s work is in accordance with the contract, the plans and the specifications and the prior agreed and signed variations (“the contract documents”).
Many experienced people sign contracts without actually reading them – after all the contract documents are “standard” contracts – and often a builder will say – it’s a “standard contract” to help the Owners decide to sign it.
If you are an owner and you suspect or you know your builder has not built the house in accordance with the contract, the plans and the specifications, or has made alterations without getting signed variations beforehand you need to obtain expert help so you know what to do next.  The first thing is to arrange a building consultant who is worth hiring and get a report that complies with the VCAT Practice Note.
Apart from the above, for the Owner there at least 3 reasons why you engage an expert to assist you in assessing the building works carried out by any builder.
Some of the larger building companies suggest that their owners engage a building consultant to assist the owner (its good marketing and it shows the builder has nothing to hide.)
First and in most cases, the most important thing is if you are not a builder you would not know whether or not the building works match the contract documents in all respects.  You can give a list, prepared by your building consultant to the builder after the first Progress Claim – if there are any items – and then you both need to determine what has to be done to reach that stage of the building works for which the Progress Payment has been claimed and you can get the building consultant back to cross-check the items are done.  But you need to be very careful selecting your building consultant.
IF YOU ARE A BUILDER – Why would a builder encourage an Owner to pay for an independent building consultant?  Answer – Because you want your owners to trust you and it takes the stress away from you, the builder, dealing with the owner in respect to any items that are not defective nor incomplete and it gives the owner the comfort of dealing with someone other than the Builder who knows about building and the owner has the comfort that their builder is a good builder and does the work properly in the first place or rectifies anything he has missed without any problem.  But you do need a sensible building consultant, not one that will pump up every basis for dispute by inflating problems and giving legal advice (see below).
Secondly, if the building works do not match the contract documents you want to know as soon as possible, before it’s too late and your building consultant’s report should be VCAT compliant, because you want to give the builder an itemised list of all items of either defective or incomplete work with the detailed specification for rectification and your building consultant’s calculation of how much it will cost you to rectify the item if you have to get someone else to rectify that item. (Which amount you might be entitled to deduct from the contract price or claim from the builder or the building warranty insurer (in specific circumstances).
Thirdly, if the builder does not rectify or complete as per the report you have an itemised list with a cost (owner’s loss and damage) and you can take that complaint to the Domestic Building Dispute Resolution Victoria (DBDRV) for adjudication and direction and if the complaint is too complex for DBDRV then when DBDRV will issue a Certificate for you to take your complaint to VCAT – you are ready – having paid for #1, only report which has all you need in it to substantiate your allegations (because it’s from a qualified experienced person who knows) and it has a proper amount (not inflated by quote or guess work) identifying the value of the owner’s claim.
The internet link for DBDRV is: https://www.dbdrv.vic.gov.au/dispute-resolution-process
No one should have to pay a building consultant that will not do his job.  In a recent report we were given by an owner the building consultant said
“The level of description and location of defects will reflect assumed builder’s skill. Thus for example a general comment “fixing is below acceptable standard because of uneven door margins and architrave quirks” will mean that the builder is required to examine find and rectify every door and architrave that is defective. It is not intended or necessary that a building expert guides builder to every individual defect. Or in the case of items not complying with regulations it is sufficient to point out nature of the defect and the builder can verify compliance requirements for himself.”   We added the underlining.
Had the builder done the work properly in the first place the owner would not have needed a building consultant who tells the owner to rely on the defaulting builder to fix all the faults even though the building consultant has not bothered to list them! The owner already knows the builder cannot be relied on to identify all the “items not complying with regulations” and therefore it is NOT “sufficient to point out nature of the defect and the builder can verify compliance requirements for himself”.
From our point of view the most important thing we can assess from a properly prepared report is – is it worth having a dispute over.

We can make this assessment when the report has been provided to the builder or the owner by someone of worthwhile reputation, qualification and experience as a building consultant who has appeared as an expert witness at VCAT – AND whose evidence is accepted as reasonable and will usually be accepted by VCAT whether it is the builder complaining about an owner or an owner complaining about a builder.  It becomes a cost –v- benefit analysis.

The question is: What are the legal costs of a dispute compared to the costs of rectification and/or completion of all items listed in a VCAT compliant report.  Would you better off paying to fix any items and avoid proceedings?
From the one report you have all of the above possible options and you need to know your options.  Contact us at admin@hls.net.au if you need to make an application to DBDRV or arrange for a building consultant.

 

This article provides information that is general in nature and is not a substitute for legal advice.

What are the challenges for a Builder?

Posted on , updated on by snsadmin
The biggest challenge for any builder, big or small is maintaining a proper record of the progress of the works. Paperwork!
The easiest way to maintain paperwork records is to include in the contract a clause that allows for the Contract to be varied as provided for in the Electronic Transactions (Victoria) Act 2000 (ETA).
This means you have to read the Contract and ensure that the “Notices” clause provides for variation to the Contract by electronic communication.
The ETA permits the creation (formation) and variation of contracts using electronic transmission.  It says – “any transaction in the nature of a contract, agreement or other arrangement” is a transaction for the purposes of the ETA.
Another method is the use of IPADs that are capable of accepting writing with a stylus and which can be signed once the agreement is recorded. (We used to tell people to write the agreement in their hardcopy diary and both sign and date it as a record of their agreement – a signed variation in writing.)
REMEMBER – if using emails in communications between Owner and Builder do not continue any exchange of emails for more than two (2) A4 pages because the cost of printing repetitious emails for litigation is enormous and for the moment it is still necessary to print an email in most cases to be able to show it to a witness in the witness box and/or the judge or other adjudicator.  This will change as electronic record systems develop to a stage where large volumes of documents can be scanned, sorted into relevant and irrelevant and produced page by page to witnesses and simultaneously to others, such as opposition barristers, parties and/or the judge or other adjudicator.  This is currently available in matters involving large amounts but not in smaller amounts because it is uneconomical.
 

Email us your challenges at admin@hls.net.au .

 

This article provides information that is general in nature and is not a substitute for legal advice.