Worth Taking Builder to VCAT for $3000?

Lseejay80 on 21/08/2020 - 10:16
Last edited 21/08/2020 - 10:18

Hi all, long time Ozbargain user and really respect the people on the site so thought I'd throw out a question to you all.

We recently had an internal renovation completed on our house (Western suburbs of Melbourne) and used a builder (won't name them just in case) to complete the works to our kitchen and bathroom.

Towards the end of the renovation it seems as though the plumber (as a sub-contractor working for the builder) didn't tighten a pipe in the kitchen island causing a reasonable amount of flooding on newly laid floor boards. The builder has ultimately taken responsibility to fix the floors so got in a flooring company (not the original flooring who laid the boards) to fix any damaged floor boards.

They fixed about 10 square metres and the fix was pretty dodgy as they were uneven, had humps at some joins and large gaps in between floor boards. We said that it wasn't good enough so asked the original flooring company to fix the floors again. The cost to fix the floors was about $6k as we ended up having to redo the entire room as the dodgy fix created additional damage to the sub-floor (so about 49 square metres in total).

We have asked the builder to pay for the floor but he has refused saying that we only needs to only pay for the portion of the floor that was originally damaged so has offered $2,500. That is about the amount that we owe him for the last progress payment.

We decided to lodge a complaint with Domestic Builders Dispute Resolution Victoria. The meeting took place this week and during the process the builder has added approximately $9,000 of variations to the final invoice saying that we owe him $12,000. All the variations are dodgy for work that wasn't undertaken so not worried about that at all (plus we have a building contract and we didn't agree to any of the variations listed).

Should we bother taking the builder to VCAT for the extra $3,000 that we incurred to fix the floors?

Just not sure if it is worth the hassle of getting the $3,000 from the builder as I suspect that he won't pay even if VCAT find in our favour. Plus we need to spend money to take builder to VCAT so don't want to waste any more money on this.

Will put in a complaint with VBA about dodgy invoice practices.

TL;DR: Builder damaged floors, only wants to pay for portion of it. Is it worth the hassle of taking builder to VCAT for $3,000?

Poll Options

  • 112
    Take builder to VCAT for the $3k
  • 5
    Walk away and take the $3k hit and avoid hassles of VCAT and additional costs
Home & Garden

Comments

  • brendanm on 21/08/2020 - 10:27

    How much does it cost to take them to VCAT? I'd do it.

    • seejay80 on 21/08/2020 - 10:29

      I looked the other day and I think it will be around $500 all up. Not sure if we then need to engage a lawyer or get legal representation as that will obviously increase the cost significantly. Never been to VCAT so thought would ask the great Ozbargain community

  • Typical16-bitEnjoyer on 21/08/2020 - 10:35
    +5

    Definitely take them to VCAT after seeking legal advice.

    Contact the Domestic Building Legal Service (DBLS) first. You might be entitled to free legal representation.

  • Caped Baldy on 21/08/2020 - 10:37

    Worth taking it to them. My experiences with VCAT aren't great. I had to deal with a fencing issue with my neighbour. They'll probably tell you to split the difference with how much you're both prepared to pay so start high.

    There is a lot of work required it preparing docs which the adjudicator will likely skim. So might be worth chatting to the builder to split the difference from the start as they will have to take time off work.

    Good luck.

  • highon2str on 21/08/2020 - 10:38

    We've had similar issues for a similar amount (3k+). Went to VCAT, won, but then of course he wouldn't pay so it was then up to us to send the sherrif to knock on the tradie's door to sieze his property….

    All that was potentially going to turn ugly and considering we had young kids at the time and he knew where we lived, it probably wasn't worth claiming our 3k. Some people have a lot less to lose than others.

    • seejay80 on 21/08/2020 - 10:41

      hi, yes we also have young kids and can wear the $3k hit. Don't want it to turn ugly either but didn't want builder to get away with it. Especially the production of a dodgy invoice full of variations as part of the "negotiations."

      • trustnoone on 21/08/2020 - 10:44

        Have you checked his licence number is legit with online? Incase it gives you other avenues to stop him from doing it to others.

        • seejay80 on 21/08/2020 - 10:47

          yes, made sure that he was legit and he is

      • madreece on 21/08/2020 - 12:39

        First thing drummed into you at builders license class " A variation isn't a variation until it is signed by both parties"
        So he doesn't have a leg to stand on with this.

        • DoctorCalculon on 21/08/2020 - 22:51

          Exactly. Otherwise, a license to put whatever the tradie wants on invoices to bloat up a simple job.

    • mbck on 21/08/2020 - 11:37

      Thats bs (not your story, but the whole thing). Something is wrong with the system if theyre being protecting with threat of violence.

    • DoctorCalculon on 21/08/2020 - 22:53

      All that trouble to win your case, and not have the order enforced on the dirtbag tradie.

      • highon2str on 22/08/2020 - 00:11

        Yeah well at the end of the day we took it as a $3000+ life lesson and moved on. It was either that or enforce the order, 3k in the bank but then having to worry about the family while I was at work…

        Hopefully the tradie found his way around life before karma found him.

  • monky on 21/08/2020 - 10:49

    Did they give you a chance to get a repair quote from your original flooring company? Sounds like your builder had all the choice in the situation and should be liable for all damages caused by cheap sub-contractors under his supervision.

    • seejay80 on 21/08/2020 - 10:51

      Yeah didn't even get a voice in repairing the floors. He actually got a quote from the company but didn't use it as it looks like he took the chance to make some money from this as he took money away from the plumber and got a cheaper company to fix! Think if it all went right he would have made $500.

  • lunchbox99 on 21/08/2020 - 11:13
    +1

    Umm… ignoring the VCAT issue, I assume you plan to tell him to shove the final invoice variations. I think it's fairly obvious that the final invoice adjustments are motivated by your floor claim so he doesn't lose anything overall.

    • seejay80 on 21/08/2020 - 11:41

      Yes, we said that we considered the final invoice with variations as fraud so would be reporting him appropriately. He produced the final invoice with variations two months after last visiting our place and only produced after being contacted by the dispute resolution officer about the flooring dispute so very obviously that he has just come up with variations to try and get leverage. I actually got in touch with some of his sub contractors asking about the additional work and they confirmed that they didn't do it! The builder then got upset at me for contacting his sub-contractors saying that any questions should have gone through him! I thought it was funny

  • Ocker on 21/08/2020 - 11:16
    -1

    When considering taking the matter to VCAT just bear in mind that although they may find in your favour, they have no powers to force the other party to make payment.
    If the other party refuses to pay you would need to take the matter to the Magistrates Court to get an enforceable undertaking (pretty expensive route).
    If the other party still refuses payment your next course of action would be to commence bankruptcy proceedings.

    • Typical16-bitEnjoyer on 21/08/2020 - 11:23
      +1

      If the other party still refuses payment your next course of action would be to commence bankruptcy proceedings.

      No. That's not correct. It's "a" course of action. Not "the next" course of action.

      Builder is probably hiding behind a Pty Ltd anyways.

      • seejay80 on 21/08/2020 - 11:42
        +2

        The building contract is under his personal name. That is one thing I checked to make sure that he couldn't just run away if it came to it after reading about many pheonix building companies

        • Typical16-bitEnjoyer on 21/08/2020 - 12:11

          That's good news for you. You have many more options available to you if you obtain a judgment order. Likewise the builder has a lot more to lose.

          • foolsgold on 21/08/2020 - 15:32

            @Typical16-bitEnjoyer: builders in victoria since at least the start of last year are required to provide both their personal Domestic Builder Licence No, and their Company's Licence No in building contracts. Hopefully it ties shonky workmanship to their career.

      • Ocker on 21/08/2020 - 11:58
        -1

        If it is only "a" course of action then what alternative (legal) course of action do you propose?

        • Typical16-bitEnjoyer on 21/08/2020 - 12:08
          -1

          SOE, Order 69, or Garnishee Order.

          Threat of a Garnishee Order works a treat against sole traders/tradies. They typically invoice their work to customers. You can hit them with an Order that the client pay you instead.

          Regardless, I'm not suggesting any particular course because I said OP should seek legal advice in my first post. Whereas you have wrongly suggested to OP they only have one "course of action" available to them. Hilariously you also haven't realised the threshold to issue a BN isn't met here.

  • Porker on 21/08/2020 - 11:41
    +2

    VCAT will have you also spending quite a bit of time with preparation etc in addition to the application fee. Onus is on you to prove everything wrong such that you'd want your arguments to be relatively bulletproof. If there's any subjectivity to what you're presenting as evidence, again, it's on you to demonstrate that it's correct or clarify. Plus, you'll need to be versed in terms of what legal aspects were breached, eg. Law of Contracts.

    There are details in your post which do raise questions though. The builder, as I see, was only obliged (as minimum) to repair the broken areas. You took it upon yourself to replace the whole floor area - or you'll need to demonstrate that their dodgy building resulted in damage to other things. Granted the issue wouldn't have been one if the problem never existed, and I too would want uniformity across the floor. The analogy I'll give is if your car was crashed into, only the damaged panels would be replaced and re-sprayed etc. If the new spray didn't exactly match the condition of the rest of the car, then you can't respray the whole thing and expect the offending party to pay for it all.

    As an aside, my company awards multiple building contracts and I have seen my fair share of phoenix companies. As example, builder racks up massive amount of debt and owes money to contractors, clients etc. Then declares bankruptcy. Builder then goes off and creates a new company under a family member's name. Builder repeats. We've gone after builders for both smaller and larger amounts via debt agencies, courts etc. Some will just string us along until enough debt is accumulated and bam! Bankruptcy…

    • seejay80 on 21/08/2020 - 11:46

      Hi, yeah we decided to do the whole floor while it was being fixed as we were advised that the subfloor of the rest of the room was damaged by the first "fix." I'm just getting a written report from the flooring company that did the fix to make sure that the evidence that we have is tight. Originally we only wanted to get the damaged part of the floor fixed but after the floor was taken up there was more damage that originally thought.

      • AFOS on 21/08/2020 - 12:48

        If you bring him to court (which I believe you should) you most probably will
        need a testimony from the flooring company along with pictures before the damage, pictures of the damage and pictures of "the repair" that was done in the first run. Judge may want to ask questions so unlikely a written statement will suffice.

        I am just curious why he did not claim it against his public liability insurance. Would have been better for everyone involved.

        • seejay80 on 21/08/2020 - 13:52

          Hi, I actually asked the builder a couple of times during the process why he didn't claim it on insurance but he said that insurance doesn't cover incompetence from the plumber. I really should have pressed it more but let it pass as the floors were being fixed. I think he did it to make some money off the plumber as I know he withheld $2,500 that was due to the plumber and tried to do the job on the cheap. Would have netted him around $500.

  • JimmyF on 21/08/2020 - 13:28
    -1

    Walk away and take the $3k hit and avoid hassles of VCAT and additional costs

    So assume this $3k is you NOT paying the builder for the current outstanding invoice? which is $12k (of which $9k is made up), so should really be $3k, and the repair was $6k, as you said they only offer $2500.

    You do run the risk the builder taking you to VCAT for unpaid invoice of $12k, which could be knocked down to $3k if the $9k addons hadn't been approved etc etc.

    Two wrongs don't make a right, its a tough issue.

    • seejay80 on 21/08/2020 - 13:55

      yes overall position is net loss of $3k as we wouldn't pay the final progress payment for the builder and pay for all the floors. Good point about the builder possibly making a claim at VCAT for the final progress payment but surely that open him up to paying for the floor. I have chatted to a few of the sub-contractors and they said they would be happy to support our case if it went to VCAT.

      • JimmyF on 21/08/2020 - 18:25

        Well yes you have two issues here at play, as I see it

        Final payment owed by you, for the work done by the builder.

        and repairs/payment by the builder to you for the damaged floor.

        If taken to VCAT for example, they won't rule each other out, as they will be viewed/judged as issue raised.

        For example, the builder is only going to take his payment owed to VCAT and ignore/not include the 'floor' repair component. So VCAT will only review this issue, you can't go in and say, but but but they owe me this or that. As that isn't the issue raised.

        The same if you took it. You'll only take your payment for the floor repair, so the builder can't raise his none payment.

        So just something to be aware of.

        Anyhow the person who neg my comment clearly doesn't think so, so only time will tell if the builder wishes to take you to VCAT/debt collector route for the $12k they think you owe them, vs the $6k you think they owe them.

  • [Deactivated] on 21/08/2020 - 13:32

    What did the plumber say?

    • JimmyF on 21/08/2020 - 18:52

      Was like that when I got here, or was connected when I left

  • [Deactivated] on 21/08/2020 - 15:05

    Huh

  • [Deactivated] on 21/08/2020 - 15:20

    I went to VCAT several years ago, for a car related issue. Overall found the process a little daunting but very straight forward. As others have suggested ensure you have documentation & photos to support your case. I would also suggest getting the flooring company who fixed the dodgy repair to write a letter of support advising what was fixed and why, as the judge will see them as an expert third party. I did similar in my case and won relatively easily…still took 6 months to get my money from the other party, as he didn't pay up until his car was about to be clamped.

    • JimmyF on 21/08/2020 - 18:53

      still took 6 months to get my money from the other party, as he didn't pay up until his car was about to be clamped.

      Correct, just because VCAT says they have to pay, doesn't mean they will pay willing.

      • [Deactivated] on 21/08/2020 - 22:38
        +1

        In the end the sheriff chases them up for everything. Believe their final bill was $2-300 more than what VCAT awarded given they had chosen not to pay. I would have preferred to see his car clamped honestly :)

  • coin saver on 21/08/2020 - 15:20
    +1

    Why didn't you put it in the hands of your insurance company?

  • foolsgold on 21/08/2020 - 16:04

    They fixed about 10 square metres and the fix was pretty dodgy as they were uneven, had humps at some joins and large gaps in between floor boards. We said that it wasn't good enough so asked the original flooring company to fix the floors again. The cost to fix the floors was about $6k as we ended up having to redo the entire room as the dodgy fix created additional damage to the sub-floor (so about 49 square metres in total).

    We have asked the builder to pay for the floor but he has refused saying that we only needs to only pay for the portion of the floor that was originally damaged so has offered $2,500. That is about the amount that we owe him for the last progress payment.

    Do you have any retention in the contract?
    Do you still owe the builder $2.5k?
    If you were unhappy with the fix, why did you not get the builder to fix the bad fix?
    You should only take repairs into your own hands unless it's urgent to safety, or if you have exhausted all options with the builder. The builder may argue that your repairs weren't warranted/needed etc.

    I'm not siding with the builder but just to know what your up against. The builder may have legitimate variations that s/he is able to throw in now that they wouldn't have bothered to charge for before. I don't know your building contract to know how well they can try put this in at the end of the process.

    It seems like the builder has done this dodgy sh-t before, my suggestion is to get some advice, to see if it's actually worth fighting it. Secondly, get a building inspector if you PM me, I can recommend you one. Get them to go around your house, write an extensive defect report (if any exists) and send it back to your builder as a separate issue. At least this way you have a further leg to stand on.

    Unfortunately the building industry in my opinion is filled with two extremes, very good builders, and very poor ones. The good ones are weighed down by the extra obligations and warranty, the crap ones disregard it, disappear and reopen.

  • Boogerman on 22/08/2020 - 08:54

    Make sure you make that complaint to the VBA. Only way to clean up the industry

  • Bitplay33 on 22/08/2020 - 12:45

    Although the builder is responsible the plumber in effect did the damage. Both entities should have public liability insurance. The plumber needs to provide you with a Certificate of Compliance. This COC gives you bargaining power with the Plumbers Registration Board or Authority. No COC provided, then more ammo for you with the plumber.
    I might follow a couple of insurance pathways. You might have insurance company details for the builder. Contact them and see if they are responsive. (Maybe not).
    Contact your own insurance company, provide details of the damage but don't necessarily elaborate on the argument with the builder. It is slightly possible your insurance company may seek damages from either the plumber or builder.
    As the builder has generously invoiced you for a further $9k I believe you could energetically create an invoice to a sum of money, say $15,000. I think the difference is $6k in your favour, the cost of redoing the floor. (?) Your time could be worth $xxxx per hour. Some type of consultancy, if you have a friend in business get them to invoice you for that sum. Something creative but true.
    Me, I would agree to pay the outstanding $2750 contingent on the job being completed to the correct standards.
    It sounds like no good will on either side. Work on the plumber.
    You don't need a lawyer for VCAAT. You do need time and facts though.
    Unpleasant and disturbing for you.
    Good luck.

  • OzHunterNSW on 22/08/2020 - 15:03

    Look at it this way….. treat it as a project with the potential to pay you $3k

    Take them to Tribunal….

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