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.
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