No, it's not over.
My last blog sounded so hopeful: notice from NCAT that they would rule based on evidence submitted, no need to engage a lawyer, the thought that a ruling could finally put this whole mess to bed. Unfortunately, it didn't work out that way...
Later that week, were sent a notice to attend tribunal. We called NCAT to confirm, and they told us a ruling had been made and a decision was ready to be handed down. Excited to finally have resolution and hopeful for a positive outcome where we could finally allocate funds to finish and fix the house, my husband and I attended the NCAT hearing with all our fingers and toes crossed. We couldn't believe that after 12 months in Tribunal, we were finally at the end.
What happened in that hearing left us shaking our heads and (left me) crying tears of hopelessness. Apparently a second notice had been sent out by NCAT that week - but never received by either party - stating a ruling could not be determined based on evidence submitted, and both parties were to attend tribunal with their respective lawyers.
Imagine our shock as the (new) Arbitrator tore strips off us for not complying with the NCAT order. Once we managed to sort through the confusion, the Arbitrator softened and explained that our evidence was not in order, and the Builder's ongoing defence of an "invalid contract" left him without a leg to stand on. She explained that she could only determine the Claims if lawyers were to step in and defend each party - no exceptions. She also then determined that we had 3 working days to sort out representation as we were to reconvene early the following week...SHIT!
Oh, and all previous reports and evidence we spent tens of hours preparing were to be thrown out due to a conflict of interest seen by the Arbitrator with our Building Expert - also having a Claim against the Builder in Tribunal...SHIT, SHIT, SHIT!
The idea of starting from scratch was devastating. We left Tribunal in a daze and called our lawyer (lucky I'd done some research!). They agreed to take us on, we signed the contract, transferred funds, and spent that evening emailing file-after-file of documentation through to bring them up to speed. The next day I met with our lawyer to prep for our appearance in Tribunal the following week. To say this was a foreign concept is an understatement...I never dreamed I'd be in a position where I needed a lawyer. It felt like everything had spun out of control...all we could do is hang on.
The following week's Hearing was a short session where dates were set down for the Claims to be heard. The Builder didn't attend, which was lucky considering the grilling he received from his own lawyer on his crappy preparation and line of defence....I had no idea a lawyer would speak so freely about his own client! The long and short of it? Both parties get new experts in, prepare claims, exchange claims and meet back in March. March! 4 months away! It feels like it's never going to end!
We were told by our lawyer that their costs would sit at around $4-5,000 a month, plus a (new) Building Expert's report was required, costing $5,000. Add in an Engineer's Report and Quantity Surveyor Report and we were staring down the barrel of at least $30,000 in legals and experts...so we got out a loan.
Fearing we were at the tipping point of a massive financial blow-out, we tried negotiating with the Builder again to try to reach a resolution before this went too far. Unfortunately, the same argument came up of an 'invalid contract', and him refusing to resolve without payment from us. In what universe would we possibly pay him for a defective and incomplete house??? ROCK AND HARD PLACE. We had the choice of paying him for the house in its current state (an even bigger loan), or continue down the legal road with the uncertainty of the ruling and mounting legal fees....so the legal route it was.
We transferred more money to the lawyers who recommended the Experts. The (now second) Building Expert held a very different philosophy concerning NCAT than the first. He believed we should keep Claims to an absolute minimum (12 max) and focus only on the troublesome stuff. He believed that the more we had ruled in our favour, the more likely we could win some legal fees back.
This was a really foreign concept compared to the previous strategy of going for broke, and claiming everything that was wrong with the house as it was our only chance with NCAT. Judging our last 2 Hearings, we seemed to think a cleaner, more refined Claim was the way to go and set out to eliminate any small / unimportant Claims. We felt we were compromising by (effectively) accepting all that had gone wrong with the build...items missing / design altered without our consent / constant struggle with the builder and contract, but we realised we had to let all of this go, and just focus on what needed to be done to get the house on the market and move on.
In the mean time we met with an Engineer to assess the structural soundness of the house. Highly experienced in NCAT, his view was even more extreme: forget the past, focus ONLY on what absolutely has to be fixed and settle NOW - out of NCAT, before even more legals eat into any financial gain. Ouch! This slash-and-burn philosophy was starting to hurt. My husband and I still felt betrayed by this entire process, but what were we to do? Fight the fight for principle? What if the legals started to outweigh any gains in financial payout? What if we didn't get any payout? What if NCAT were to rule in the Builder's favour? This was such a gamble.
All of our family and friends shook their heads. How could we consider compromising so heavily when (they felt) the builder was so very much in the wrong?
Let me put this into a little more perspective here and explain that for 2 years we have struggled with the builder to a) build the house to plan, and b) have it rectified. Our daughter is 2 years old. This is not fair on her. Its all gone so horribly wrong and I'm ready to say goodbye to having this in our lives. So ready!!! I'm also 9 months pregnant. Has any of this made me a better Mum? No. I may show strength, but I'm also angry, frustrated and sad. This situation is a constant financial weight and ever-present burden in our lives and marriage.
I need to get to the point where I stop asking why we ever did this, and sell the house.
So we slashed and burned. Total (heavily compromised) fix-up costs sit at around $40,000. We still owe around $10,000 to the Builder as a final payment. We save the money-burning exercise of giving $30,000 to legals and experts, and put this into the house instead. The result? The Engineer has negotiated on our behalf that we receive the certificates and certifications from the Builder to obtain a full Occupancy Certificate and everyone walks away...no money exchanged.
Is it fair? No. Is it over? Maybe soon, and that counts for a lot.
Friday, 12 December 2014
Friday, 24 October 2014
I'm not counting my chickens...yet
Well, we had another Tribunal Directions Hearing - the only reference to our letter sent (trying to hurry-up the process) was an extended session and earlier date - both of which we were grateful for.
The meeting started with the same Arbitrator as the last time (a good sign), who seems to have taken on our Claim now as his case, meaning we're finally getting some sort of consistency. It felt like the entire afternoon (3.5 hours) consisted of the Arbitrator buttering the Builder up and beating us up, then buttering us up and beating the Builder up...it was hard to tell where it was all going.
We seemed to be moving through some items on the Builder's claim (6 items) until we reminded the Arbitrator of our original claim (70+ items) which is where it all ground to a halt...we weren't going to reach resolution in this (one) session.
My husband and I reiterated that there was no further evidence we could possibly submit on our Claim. We had included quotes, reports, expert's opinions, photographic evidence, timelines, diary notes...you name it, we've submitted it. We implored the Arbitrator to rule on the Claims based on the evidence submitted by both parties.
The Arbitrator asked the Builder if he was happy for Tribunal to rule based on the evidence submitted (and stop wasting ours and Tribunal's time going through each and every item in Hearings), or would he prefer to enlist a lawyer and re-list the Claim with legal representation.
The Builder deliberated and asked for extra time to decide, and received it (of course). The next 7 days were spent biting our nails hoping the Builder would ask to have the Claim ruled on and not go down the lawyer path. When the Builder notified NCAT that he had employed a lawyer (and therefore this process was going to start from scratch again with the added expense of lawyers), our hearts broke. I broke. I was absolutely devastated. When would this ever be over?
I picked myself up and started speaking with specialised building lawyers. I found a good one who heard me out and gave me some insightful advice. He recommended going through our evidence to try to find any problems / loopholes and go from there. Now we just had to find the $3,500 to pay for it.
Just before handing over the fees and all of our paperwork (and definitely out of the blue), we received notice from NCAT that the Arbitrator was going to go ahead and rule on the Claims...and soon. Amazed (and confused) by this revelation, I contacted NCAT to ask why the change of mind...after all, weren't we re-listing since the Builder had insisted on a lawyer?
It seems not. The Arbitrator has allowed legal representation but there will be no further attendances, meetings, evidence...nothing. He will rule shortly and the ruling will be final. I would like to let out a quiet "hooray" at the thought of this all being over, but nothing is final.
There's no guarantee we will be awarded the funds and certificates to fix and finish this house once and for all, in fact, it could all fall to shit and we may have to take out a loan to pay the Builder compensation for inconsistencies in the drawings - in which case we'd be back in Tribunal against the House Designer (who drew and submitted these drawings and facilitated the problematic contract between us and the Builder).
Who knows? Hopefully we will - very soon. Keep you posted.
The meeting started with the same Arbitrator as the last time (a good sign), who seems to have taken on our Claim now as his case, meaning we're finally getting some sort of consistency. It felt like the entire afternoon (3.5 hours) consisted of the Arbitrator buttering the Builder up and beating us up, then buttering us up and beating the Builder up...it was hard to tell where it was all going.
We seemed to be moving through some items on the Builder's claim (6 items) until we reminded the Arbitrator of our original claim (70+ items) which is where it all ground to a halt...we weren't going to reach resolution in this (one) session.
My husband and I reiterated that there was no further evidence we could possibly submit on our Claim. We had included quotes, reports, expert's opinions, photographic evidence, timelines, diary notes...you name it, we've submitted it. We implored the Arbitrator to rule on the Claims based on the evidence submitted by both parties.
The Arbitrator asked the Builder if he was happy for Tribunal to rule based on the evidence submitted (and stop wasting ours and Tribunal's time going through each and every item in Hearings), or would he prefer to enlist a lawyer and re-list the Claim with legal representation.
The Builder deliberated and asked for extra time to decide, and received it (of course). The next 7 days were spent biting our nails hoping the Builder would ask to have the Claim ruled on and not go down the lawyer path. When the Builder notified NCAT that he had employed a lawyer (and therefore this process was going to start from scratch again with the added expense of lawyers), our hearts broke. I broke. I was absolutely devastated. When would this ever be over?
I picked myself up and started speaking with specialised building lawyers. I found a good one who heard me out and gave me some insightful advice. He recommended going through our evidence to try to find any problems / loopholes and go from there. Now we just had to find the $3,500 to pay for it.
Just before handing over the fees and all of our paperwork (and definitely out of the blue), we received notice from NCAT that the Arbitrator was going to go ahead and rule on the Claims...and soon. Amazed (and confused) by this revelation, I contacted NCAT to ask why the change of mind...after all, weren't we re-listing since the Builder had insisted on a lawyer?
It seems not. The Arbitrator has allowed legal representation but there will be no further attendances, meetings, evidence...nothing. He will rule shortly and the ruling will be final. I would like to let out a quiet "hooray" at the thought of this all being over, but nothing is final.
There's no guarantee we will be awarded the funds and certificates to fix and finish this house once and for all, in fact, it could all fall to shit and we may have to take out a loan to pay the Builder compensation for inconsistencies in the drawings - in which case we'd be back in Tribunal against the House Designer (who drew and submitted these drawings and facilitated the problematic contract between us and the Builder).
Who knows? Hopefully we will - very soon. Keep you posted.
Monday, 11 August 2014
9 months in tribunal and counting
Today we received notice of our next Directions Hearing - in September. This makes 9 weeks between hearings - with nothing to show for the gap. At least the previous hearings have had us forming evidence to / from the other party. This time the gap was due to the Arbitrator wanting the paperwork work drawn up differently, but not having capability time to articulate his exact wishes.
Yes, I'm still angry.
My husband and I wrote a (very) carefully worded letter to NCAT (including a gantt chart to demonstrate timelines), in an effort to showcase that all evidence has been submitted by both parties - imploring them to move forward with the Claim to have it heard in a Final Hearing.
NCAT's complaint process states a 7 day response time frame. On day 10 we called to ask if they'd received our letter, to which we received a hasty email confirming receipt, and that someone was "looking into the matter". I wonder if we'll ever hear back??!!! It did act as a catalyst for today's new Directions Hearing date though - I should be grateful for this.
We're tired of this game of handball where we get bounced from one Arbitrator to another...none of which want to read the details of the Claim, or commit to a Hearing date where someone will need to make a decision. What a bloody awful process.
P.S we declined the Builder's offer, letting him know that the fucking awful job he did on the house will require lots of $$$ to fix...and we will be pursuing him to pay for the fix (or words to that effect).
Yes, I'm still angry.
My husband and I wrote a (very) carefully worded letter to NCAT (including a gantt chart to demonstrate timelines), in an effort to showcase that all evidence has been submitted by both parties - imploring them to move forward with the Claim to have it heard in a Final Hearing.
NCAT's complaint process states a 7 day response time frame. On day 10 we called to ask if they'd received our letter, to which we received a hasty email confirming receipt, and that someone was "looking into the matter". I wonder if we'll ever hear back??!!! It did act as a catalyst for today's new Directions Hearing date though - I should be grateful for this.
We're tired of this game of handball where we get bounced from one Arbitrator to another...none of which want to read the details of the Claim, or commit to a Hearing date where someone will need to make a decision. What a bloody awful process.
P.S we declined the Builder's offer, letting him know that the fucking awful job he did on the house will require lots of $$$ to fix...and we will be pursuing him to pay for the fix (or words to that effect).
Wednesday, 16 July 2014
directions hearing no. 3
**angry blog warning**
Yep, we're up to hearing number 3. It's 8 months since we lodged the Claim, and I'm now feeling supremely disappointed that this process is dragging on with no Final Hearing in sight.
Yesterday's Hearing was an utter shit fight. Both parties have had ample opportunity to gather evidence for their Claim, and a chance to respond to the other applicant's Claim. We're talking 6 months of opportunity. Yesterday's hearing was supposed to start surmising all paperwork and move towards the Final Hearing. Instead, the Arbitrator allowed the Builder to add further evidence to his Claim, and further rebuttal to ours.
This paperwork was due 10 and 6 weeks ago - that was the instruction laid down in the previous two Hearings!!! What does this mean? Many more months to wade through his bullshit until we can get back to where we were supposed to be yesterday. Why did the Arbitrator allow this? God only knows.
Arbitrators seem to be like Council inspectors...every one you meet wants to change the rulings of the previous one, and put his 'stamp' on the process. Due to the Builder's heavy accent and inability to speak up (he mumbles a lot), the last two Arbitrator's have mistaken this for the Builder not understanding and extending him extra allowances. We're so disappointed this has happened as we know full-well he does understand everything. He may be arrogant, but he's not ignorant.
This Arbitrator also wants both Claims to be amalgamated into one Claim - unbelievable! We're opposing parties. Why are we expected to work together to file one lot of paperwork???? Isn't this what claiming and counter-claiming is all about...having a separate Claim? UGGHHHHH!!! Yesterday we walked out no further ahead, in fact we walked out months behind.
When will this ever end?
This process doesn't just cost us in time off work and time to build each Claim and response, but time talking about it, time away from my family, time stressing about all the things that are still incomplete, time spent worrying over all the faulty things, and time feeling hopeless and empty. I hate this house. This was the biggest mistake EVER.
We should receive a notice in the mail soon on our next Hearing. At that Directions Hearing we'll get further instruction on paperwork due (the Arbitrator couldn't explain yesterday as he was hungry for lunch), and arrange for another Directions Hearing to hopefully get us up to where we should have been yesterday.
I've lost faith in this process. I thought NCAT was supposed to be 'for the consumer'. Instead the Builder is receiving time extensions, allowances for submitting incorrect evidence...he even got away with using a Pensioner's discount to lodge the Claim because he has a Family Tax Benefit. WTF? Meanwhile we're binding every document, filing as-per the process, meeting every deadline....for what?
I'm tired of people telling me 'it'll all work out', or 'justice will prevail'...will it? We can't be sure that it will. Apparently if you're a Builder who feigns ignorance, you're able to build a shitty-quality house, and answer to no one. You just keep muddying the water until people run out of time and patience to call you on your actions and bring you to some kind of consequence.
We received a phone call from his subcontractor - the Build Supervisor - last night. This is the first time we've heard from him since Mediation 9 months ago. Trying to play the 'good cop', and asking us where everything was up to (as if he didn't know, he was obviously calling on behalf of the Builder), he warned us the Builder was employing a lawyer to drag things out as long as possible.
He called our Claim ridiculous (whatever) and tried to dissuade us from continuing with Arbitration. He finished by trying to broker a deal where if we dropped our Claim, the Builder would drop his Claim and give us the certificates necessary to receive an Occupancy Certificate - and we all walk away. We said we'd think about it (this is a negotiation after all). We haven't.
The offer is ridiculous - what about the $36,000 worth of gyprock that needs fixing? The incomplete tiling to the entire outside area? Damage to windows and bricks? Painting and cleaning? New balustrades? The list goes on, and on. We can't afford to do this ourselves...nor should we have to. This house wasn't built to plan or code. Why should we cop the cost for their shitty workmanship and cost-cutting on standard items?
The conversation ended with a "we'll think about it and get back to you", but we won't. Until something semi-reasonable comes on the table, we just have to keep going with Arbitration, hoping some resolution comes soon.
Yep, we're up to hearing number 3. It's 8 months since we lodged the Claim, and I'm now feeling supremely disappointed that this process is dragging on with no Final Hearing in sight.
Yesterday's Hearing was an utter shit fight. Both parties have had ample opportunity to gather evidence for their Claim, and a chance to respond to the other applicant's Claim. We're talking 6 months of opportunity. Yesterday's hearing was supposed to start surmising all paperwork and move towards the Final Hearing. Instead, the Arbitrator allowed the Builder to add further evidence to his Claim, and further rebuttal to ours.
This paperwork was due 10 and 6 weeks ago - that was the instruction laid down in the previous two Hearings!!! What does this mean? Many more months to wade through his bullshit until we can get back to where we were supposed to be yesterday. Why did the Arbitrator allow this? God only knows.
Arbitrators seem to be like Council inspectors...every one you meet wants to change the rulings of the previous one, and put his 'stamp' on the process. Due to the Builder's heavy accent and inability to speak up (he mumbles a lot), the last two Arbitrator's have mistaken this for the Builder not understanding and extending him extra allowances. We're so disappointed this has happened as we know full-well he does understand everything. He may be arrogant, but he's not ignorant.
This Arbitrator also wants both Claims to be amalgamated into one Claim - unbelievable! We're opposing parties. Why are we expected to work together to file one lot of paperwork???? Isn't this what claiming and counter-claiming is all about...having a separate Claim? UGGHHHHH!!! Yesterday we walked out no further ahead, in fact we walked out months behind.
When will this ever end?
This process doesn't just cost us in time off work and time to build each Claim and response, but time talking about it, time away from my family, time stressing about all the things that are still incomplete, time spent worrying over all the faulty things, and time feeling hopeless and empty. I hate this house. This was the biggest mistake EVER.
We should receive a notice in the mail soon on our next Hearing. At that Directions Hearing we'll get further instruction on paperwork due (the Arbitrator couldn't explain yesterday as he was hungry for lunch), and arrange for another Directions Hearing to hopefully get us up to where we should have been yesterday.
I've lost faith in this process. I thought NCAT was supposed to be 'for the consumer'. Instead the Builder is receiving time extensions, allowances for submitting incorrect evidence...he even got away with using a Pensioner's discount to lodge the Claim because he has a Family Tax Benefit. WTF? Meanwhile we're binding every document, filing as-per the process, meeting every deadline....for what?
I'm tired of people telling me 'it'll all work out', or 'justice will prevail'...will it? We can't be sure that it will. Apparently if you're a Builder who feigns ignorance, you're able to build a shitty-quality house, and answer to no one. You just keep muddying the water until people run out of time and patience to call you on your actions and bring you to some kind of consequence.
We received a phone call from his subcontractor - the Build Supervisor - last night. This is the first time we've heard from him since Mediation 9 months ago. Trying to play the 'good cop', and asking us where everything was up to (as if he didn't know, he was obviously calling on behalf of the Builder), he warned us the Builder was employing a lawyer to drag things out as long as possible.
He called our Claim ridiculous (whatever) and tried to dissuade us from continuing with Arbitration. He finished by trying to broker a deal where if we dropped our Claim, the Builder would drop his Claim and give us the certificates necessary to receive an Occupancy Certificate - and we all walk away. We said we'd think about it (this is a negotiation after all). We haven't.
The offer is ridiculous - what about the $36,000 worth of gyprock that needs fixing? The incomplete tiling to the entire outside area? Damage to windows and bricks? Painting and cleaning? New balustrades? The list goes on, and on. We can't afford to do this ourselves...nor should we have to. This house wasn't built to plan or code. Why should we cop the cost for their shitty workmanship and cost-cutting on standard items?
The conversation ended with a "we'll think about it and get back to you", but we won't. Until something semi-reasonable comes on the table, we just have to keep going with Arbitration, hoping some resolution comes soon.
Tuesday, 1 April 2014
10 reasons why we're in this position...
1. Too trusting.
2. Too rushed.
3. Too believing
4. Too forgiving.
5. Too much compromising.
6. Too motivated to see it happen.
7. Too stubborn.
8. Too over it.
9. Too angry.
10. Too invested to give up.
2. Too rushed.
3. Too believing
4. Too forgiving.
5. Too much compromising.
6. Too motivated to see it happen.
7. Too stubborn.
8. Too over it.
9. Too angry.
10. Too invested to give up.
Wednesday, 26 March 2014
tribunal process
It's been a while. Truth is, I've been too sad and too busy to blog lately, but this week is different.
This week a weight was lifted off my/our shoulders and I'm happy to sit down and write about the last little while.
In mid February, 2 days before we were due to attend our new date with the New South Wales Civil Administrative Tribunal (NCAT), we received an email from the Builder stating he was lodging a claim AGAINST us.
The claim was $30K above our claim against him to fix and finish the house.
To say we were floored would be an understatement.
Not only do we hate him more for this, but it also means there's a whole lot more work in store. Not to worry, I have the fire in my belly to bring this dickhead down.
His claim against us mainly consists of discrepancies between the architects and engineer's drawings...ironic considering he's failed to use either of these drawings in much of the house build. In fact, this process has really brought to light his inability to follow drawings / specifications / building codes...right down to the slab and frame, now creating substantial cracking and shifting in the structure.
In any case, the 'correctness' of these drawings - as stated in the contract - lie with the Builder, so why is he claiming against us - the Client? What a tool. His claims are laughable (now, not at first), and I must admit that while he's not very good at building houses, he's very good at muddying the waters - something I'm having to wade through now.
After the initial surprise, we contacted our newly-appointed Building Expert who put us at ease about the process. As he predicted, NCAT amalgamated the two cases so items listed in both claims could be addressed simultaneously. Makes sense, though the process has effectively tripled in time. We should be finished by October / November this year...devastated!
So back to February...we rocked up to Tribunal with all of our paperwork in hand but none of that was really necessary as it was a 'Directions Hearing' - basically, directions on how this process will go down over the next few months.
The Arbitrator addressed our claim first, asking how long it would take us to gather all of the documents / emails / statements for all of our (70+) claims against the Builder. We needed to be able to substantiate each claim and provide a factual account of each item listed on a Scott Schedule - the template NCAT like to use. We offered 4 weeks to turn it around.
In reply, the Arbitrator asked the Builder how long he would need to respond to our claims, he requested 7 weeks. We stated this was another stalling tactic, and the Arbitrator reduced his time frame to 6 (7 weeks with Easter holidays included) - triple the time frame most respondents get. Ughh!
After this 10 week back-and-forth, we will reconvene in May and start the process again in reverse - it will be the Builder's turn to substantiate his claims, and our job to reply.
This should take us to approximately August where the Builder's nominated Building Expert will meet with our expert onsite to complete a 'conclave' where the they will nut-out the finer details before going back to NCAT with some top-line figures. Hopefully this is where we'll get a ruling around October / November.
So where are we up to now? This week we handed NCAT and the Builder our documentation surrounding our claims to fix and finish the house...all 4 folders of it. I took almost 3 weeks off work and nearly every evening to get it done. What a marathon. Should we have asked for more time? Probably. I underestimated how difficult it would be to build a case on some items as there had been so many alterations of the Builder's invoices.
For example, we're currently using version 8 of the Final Invoice, in which the overall (signed) contract price has been increased by the Builder, his costs have suddenly increased and our (documented) payments have decreased...it's a mess. Some claims I had to reference every past invoice, including the changes and our bank statements just to clarify payment. Exhausting!
Can't wait for this to be over. Can't wait to bury this guy and move on with our lives.
I never thought I'd have to fight this hard for our house to be finished. I'm amazed that we're even in this position, but we have to keep fighting - we can't roll over and let his claim crush us.
What's next? In 7 weeks we'll get his reply to our claim. Should be a bunch of random statements written in red crayon (as per his claim against us). Am looking forward to 'new' invoices with increased costs on old items. Maybe this time he'll use a calculator, or even a dictionary to define 'builder', as it seems he still doesn't understand what that terms means...he's now claiming we should have paid for Home Warranty Insurance on the house build. Unbelievable.
This week a weight was lifted off my/our shoulders and I'm happy to sit down and write about the last little while.
In mid February, 2 days before we were due to attend our new date with the New South Wales Civil Administrative Tribunal (NCAT), we received an email from the Builder stating he was lodging a claim AGAINST us.
The claim was $30K above our claim against him to fix and finish the house.
To say we were floored would be an understatement.
Not only do we hate him more for this, but it also means there's a whole lot more work in store. Not to worry, I have the fire in my belly to bring this dickhead down.
His claim against us mainly consists of discrepancies between the architects and engineer's drawings...ironic considering he's failed to use either of these drawings in much of the house build. In fact, this process has really brought to light his inability to follow drawings / specifications / building codes...right down to the slab and frame, now creating substantial cracking and shifting in the structure.
In any case, the 'correctness' of these drawings - as stated in the contract - lie with the Builder, so why is he claiming against us - the Client? What a tool. His claims are laughable (now, not at first), and I must admit that while he's not very good at building houses, he's very good at muddying the waters - something I'm having to wade through now.
After the initial surprise, we contacted our newly-appointed Building Expert who put us at ease about the process. As he predicted, NCAT amalgamated the two cases so items listed in both claims could be addressed simultaneously. Makes sense, though the process has effectively tripled in time. We should be finished by October / November this year...devastated!
So back to February...we rocked up to Tribunal with all of our paperwork in hand but none of that was really necessary as it was a 'Directions Hearing' - basically, directions on how this process will go down over the next few months.
The Arbitrator addressed our claim first, asking how long it would take us to gather all of the documents / emails / statements for all of our (70+) claims against the Builder. We needed to be able to substantiate each claim and provide a factual account of each item listed on a Scott Schedule - the template NCAT like to use. We offered 4 weeks to turn it around.
In reply, the Arbitrator asked the Builder how long he would need to respond to our claims, he requested 7 weeks. We stated this was another stalling tactic, and the Arbitrator reduced his time frame to 6 (7 weeks with Easter holidays included) - triple the time frame most respondents get. Ughh!
After this 10 week back-and-forth, we will reconvene in May and start the process again in reverse - it will be the Builder's turn to substantiate his claims, and our job to reply.
This should take us to approximately August where the Builder's nominated Building Expert will meet with our expert onsite to complete a 'conclave' where the they will nut-out the finer details before going back to NCAT with some top-line figures. Hopefully this is where we'll get a ruling around October / November.
So where are we up to now? This week we handed NCAT and the Builder our documentation surrounding our claims to fix and finish the house...all 4 folders of it. I took almost 3 weeks off work and nearly every evening to get it done. What a marathon. Should we have asked for more time? Probably. I underestimated how difficult it would be to build a case on some items as there had been so many alterations of the Builder's invoices.
For example, we're currently using version 8 of the Final Invoice, in which the overall (signed) contract price has been increased by the Builder, his costs have suddenly increased and our (documented) payments have decreased...it's a mess. Some claims I had to reference every past invoice, including the changes and our bank statements just to clarify payment. Exhausting!
Can't wait for this to be over. Can't wait to bury this guy and move on with our lives.
I never thought I'd have to fight this hard for our house to be finished. I'm amazed that we're even in this position, but we have to keep fighting - we can't roll over and let his claim crush us.
What's next? In 7 weeks we'll get his reply to our claim. Should be a bunch of random statements written in red crayon (as per his claim against us). Am looking forward to 'new' invoices with increased costs on old items. Maybe this time he'll use a calculator, or even a dictionary to define 'builder', as it seems he still doesn't understand what that terms means...he's now claiming we should have paid for Home Warranty Insurance on the house build. Unbelievable.
Wednesday, 15 January 2014
more delays
I've got to hand it to the Builder - he's really good at dragging things out - like the house build (still not finished after 12 months), mediation (what an epic fail that was), and now Tribunal.
We received notice from NCAT (formally CTTT) that he was was "not available on the allocated hearing date". Unfortunately he did not send us a copy of this notice, as required, therefore we cannot be sure if he had a legitimate reason, or is just trying to put us off in hope that we'll drop the entire case. Call me cynical, but I'm going with the latter.
My husband inquired with NCAT as to how many times the Builder can keep putting off the hearing date until it has to go ahead. The answer was "indefinitely" - as long as the judge sees the reasoning as valid. WTF?
NCAT told us the best thing to do is write an email to the judge explaining our concerns, and that this be taken into consideration should the next date be 'unsuitable' for the Builder. We received written response concerning our email, along with confirmation that it has been put on file, and a copy sent to the Builder.
Our new Tribunal date is mid February - another month of waiting. Fingers crossed it actually goes ahead.
We received notice from NCAT (formally CTTT) that he was was "not available on the allocated hearing date". Unfortunately he did not send us a copy of this notice, as required, therefore we cannot be sure if he had a legitimate reason, or is just trying to put us off in hope that we'll drop the entire case. Call me cynical, but I'm going with the latter.
My husband inquired with NCAT as to how many times the Builder can keep putting off the hearing date until it has to go ahead. The answer was "indefinitely" - as long as the judge sees the reasoning as valid. WTF?
NCAT told us the best thing to do is write an email to the judge explaining our concerns, and that this be taken into consideration should the next date be 'unsuitable' for the Builder. We received written response concerning our email, along with confirmation that it has been put on file, and a copy sent to the Builder.
Our new Tribunal date is mid February - another month of waiting. Fingers crossed it actually goes ahead.
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