We are in an environment where work is on the increase and we can do without the rubbish that some builders go on with.
There is no doubt that some of them just do not get it. They want everything for very little, can be rude, obnoxious and are real time wasters.
The worst ones are those that keep you on site endlessly patching and fixing defects that can only be found with a 1000 watt light and a magnifying glass.
There is also the issue of the builder threatening to get others in to take over the work of rectify defects.
The reality is that you want this dealt with as a contractual matter and not just some degree of interpersonal relationship issue such as an argument with your family or friends where you just get to walk out.
The big item of news is that if you walk off the job without doing what you legally have to do you will not get paid and you will wind up owing the builder money.
Fundamentals
We are seeing an increase in disputes that involve fine details these days.
The basic fundamentals that lead to a significant reduction in these disputes are:
| 1. | Make sure you have the skills to enter into and administer a contract. |
| 2. | Have a written contract. |
| 3. | The contract must specify the level of finish contained in the relevant standard that you are to deliver and the quality of the background before you start work. |
| 4. | Do the work to the standard specified within the time specified. |
| 5. | Complete the paperwork necessary to get paid for variations. |
| 6. | Complete the paperwork necessary to get paid for delays or to make the builder responsible for delays rather than having liquidated damages held over your head as a bargaining tool. |
When there is a dispute about the quality of finish:
| 1. | Check the standard specified in the contract; |
| 2. | Look at the standard of work completed honestly as against the standard specified in the contract. |
| 3. | If it is defective or arguably not up to standard fix it (it can be a lot cheaper to do a job to a level that is slightly above the level specified in the contract than incurring significant legal costs). |
| 4. | If there is still a problem is it a personality clash and will changing site staff solve the problem. |
| 5. | If the problem still persists then it is time to get an external assessment of the work which will also serve as evidence in the event that you have to go to court or adjudication to get your money. |
| 6. | The final step is to seek expert advice about how to progress the problem and if necessary or possible get you off the site. |
When things are out of control
If you are in a situation where the builder is on some sort of rampage or thinks they are going to make a loss and is just trying to get you to leave site by being totally unreasonable and nasty then the procedure set out above is not going to work.
What you have to realise is the builder is attempting to bully you into getting so upset or distressed that you walk off the project which is a breach of the contract so that you bear the legal consequences instead of forcing the builder to terminate and suffer the consequences.
Here is what needs to be done:
| 1. | When the builder turns nasty the first group of things you need to do are: |
| a. | Keep calm; |
| b. | Realise that this may well be a very useful profit making opportunity; |
| c. | Keep your mouth shut; |
| d. | Do not agree to anything; |
| e. | Do not make phone calls or send emails agreeing to walk away from the job and give up rights to payment for work done in the hope that they will turn back into a sane rational human being; |
| f. | Call us straight away. |
| 2. | Accept that this is going to take a little bit of time to sort out but if you stay calm you can win and make money; |
| 3. | Do not ring every agency known to human kind (including the QBCC) in the hope that they will attend at site and persuade the builder to be reasonable – That is a waste of time and resources when you can be doing things that are productive; |
| 4. | Do not think that a strongly worded solicitor’s letter will do the trick; |
| 5. | Accept that there are no silver bullets to resolve these matters but there are processes that will help you; |
| 6. | Those processes are different for each matter and do require the assistance of someone who is experienced in these problems; |
| 7. | Keep on working on site; |
| 8. | Using our contacts and resources engage in an evidence gathering process to establish a quality and progress snapshot of the site that you can use in an adjudication/ Court/ Tribunal later. The aim is not to win the argument there and then but gather what you need to win the argument where it counts. |
| 9. | Use the expert advice to manage the contractual issues. Do not just walk away from the site. |
| 10. | Keep working on site until such time as your expert tells you to stop or you are physically blocked from entering the site. |
| 11. | If you are blocked on site, remember to gather evidence of the blocking (preferably video which even the most basic of phones will do these days). |
| 12. | If there is any physical abuse and screaming on site you are entitled to record that. You do not have to advise the builder they are being recorded. Details about this issue are going to be the subject of another full article but for the time being do not go putting any recordings or video up on the internet no matter how angry you are about the events. |
Contracts
It is a fundamental aspect of this day and age that you must have a written contract.
There is a common belief among a lot of trade contractors that written contracts are evil things that builders use to avoid paying subcontractors but if they do not have a contract then they will still get paid.
The reality is that if you do not have a written contract you still have a contract but it is subject to a lot of common law. The problem with the common law is that most of it is not in the interests of the trade contractor. That is why you should have a written contract to overcome the common law problems.
We have access to systems and advice that can help with these issues.
Training
We provide training, services and advice on all of the points raised above.
Even if you are not having the sort of problems outlined above it is only a question of time before they arise. Prevention is better than cure and courses offered by us can assist you to avoid these problems.