My fixed price contract was only fixed until the builder wanted more

[pinkboy]

In Melbourne the appliances are almost never installed until the day of handover when the client pays the final instalment. This is due to theft. If they are installed prior to handover and they are stolen the builder is liable.

Also to the OP, I had another thought.

If this $27k is a variation, then variations are paid at completion not at the end of the contract.

Also if you are relying on a bank to fund progress payments then the bank should be unlikely to fund this payment.

Yes, but if a builder is smart, he will get you to sign a variation form, meaning he would then have an 'enforceable contract' of his own.

I would seek specific advise. His problem certainly should not be your problem.

pinkboy

 

[Scott No Mates]

A vary (on resi) must be in writing to be enforceable. It is rarely, if ever, paid for at the end of the project because the works were completed much earlier, the contract price is adjusted at the time of the variation being approved not at completion.

Contract adjustments can be (and are) made at anytime during the works so that the builder is not left out of pocket if there are many variations. All varies must be agreed before commencing the works (or shortly afterwards if not possible to quantify at the time of executing the works).

 

[redrock]

The $27k isn't a variation, it is the builder wanting more than the contract price when he realized his mistake, as the price was not part of the contract the bank will not pay it and we have to find the extra money ourselves.

The amount he wants has since been lowered and we have paid a proportion of that to him, we will be living on bare concrete when we move in as that money was for floor covering.

The builder is not happy that we didn't pay the full amount and we are not happy that we had to pay at all, it is a no win situation for everyone.

Legal advice costs $300 per hour and if you go to VCAT you will end up paying around $350 per 10 minutes so we would like to avoid going down that path where the only winners are the lawyers.

 

[Joe D]

The builder is not happy that we didn't pay the full amount and we are not happy that we had to pay at all, it is a no win situation for everyone.

Legal advice costs $300 per hour and if you go to VCAT you will end up paying around $350 per 10 minutes so we would like to avoid going down that path where the only winners are the lawyers.

So what are you going to do if the Builder hits you with another "surprise" before you get to lockup stage?

Suggest you involve the lawyers sooner rather than later before it ends in tears ...............(although I hope this is not the case.)

 

[pinkboy]

The $27k isn't a variation, it is the builder wanting more than the contract price when he realized his mistake, as the price was not part of the contract the bank will not pay it and we have to find the extra money ourselves.

The amount he wants has since been lowered and we have paid a proportion of that to him, we will be living on bare concrete when we move in as that money was for floor covering.

The builder is not happy that we didn't pay the full amount and we are not happy that we had to pay at all, it is a no win situation for everyone.

Legal advice costs $300 per hour and if you go to VCAT you will end up paying around $350 per 10 minutes so we would like to avoid going down that path where the only winners are the lawyers.

This bit scares me, because you have conceded to the variation. I would seek proper legal advice, and not just VCAT.

pinkboy

 

[Tano]

Is there any update to this? Where you hit with more variations to recoup the builders cost since you didnt pay the full 27k?

 

[Perp]

I may be nitpicking, but I dont see a contract as good faith, I see it as a contract, the builder expects you to pay, so as a buyer fulfilling your obligation to pay isnt good faith,

good faith to me is when the builder says "I know ive agreed on medium quality wood, but Iahve a contact who can get high quality wood for the same price, ill try and use that, if not ill use the normal stuff"

Pay the $27K, the deduct it from the final progress payment claim once the build is done and the C of O has been issued (never pay the final until all work is done and C of O is in hand).

If they do not give you the keys, just get a locksmith or drill the lock and change it yourself. You probably will not have appliances (cooker, range hood, dishwasher and HWS in place, but these cost way less than $27k.

thats great advice, has anyone done this before???

You may not understand good faith, but you seem to have a solid handle on bad faith.

 

[robboat]

Was there a detailed scope of works in the contract?

This should show the two individual slabs clearly included in the "fixed price".....

Missing the cost of a slab is a big mistake.....so Builder has less opportunity for change at your expense.
I am concerned you may have a dud builder.....lowest price quote???

Once you go legal then it is all a loss.....your builder will probably do a poor, slow job (or go broke) and you will loose in stress, legal costs and time...and probably have to get another builder involved.

As other posters have said - try to work out a compromise with the builder.

Difficult situation....good luck.