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WA Australian Consumer Law - How to Respond to Client's Demands?

Discussion in 'Australian Consumer Law Forum' started by Darrell, 31 March 2016.

  1. Darrell

    Darrell Active Member

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    Hi.

    I have recently plastered an exterior feature to a three-storey office block. The task was completed following Product Specification after which I was paid in full by the Management Company, with the client made fully aware that the substrate was not of the usual nature, i.e. glazed tiling as opposed to traditional Sand Cement Float background or substrates such as Blue Board etc.

    Prior to the commencement, a test patch and samples were provided at my own expense and the client gave me the go ahead to proceed. In addition to these steps, I also made the client aware that the product should not be used in any areas likely to pool water as this was contrary to Product Specifications.

    Following rain showers three days after completion of the render I had applied, delamination from the substrate occurred. I was informed of this via email and my response was to immediately contact the client, visit the job site and organise the removal of all the affected areas.

    This was completed for no payment in under three days leaving the building essentially as it had been prior to the contract in order that any subsequent works could be continued without delay or disruption. On further inspection, it appears there was an inherent water leak throughout the area I had worked on which in turn was the reason the my work became defective. I was not informed at any time that this defect was present before or during the contract being executed.

    I have photo eveidence of clearly showing the building before, during and after the stated works. In addition, I have emails from the client detailing their gratitude and pleasure for the works completed. The clients are now asking for a full reimbursement of the contract monies regardless of my insistence that I have outlaid a substantial amount of money in order to complete the works in the first instance and despite my prompt actions to ensure no further inconvenience be caused from the situation.

    I am happy to reimburse some of the monies as an act of goodwill on my part seeing as the contract, although fulfilled to the clients liking, is obviously now irrelevant in terms of solving the original issues of the buildings dated facade. I do not think sole responsability should fall to me, seeing that I was not made aware there was ongoing problems with water penetration within the building prior to my involvement.

    In summary, could you please help me on how I should respond to the client's demands under Australian Consumer Law?

    I have informed them of my expenses which equate to less than half the original quote and await their response but would clearly like to know from a legal point of view how I stand should they persist or indeed threaten legal action against me.

    Thank you in advance for any assistance you may be able to provide.

    Sincerely
     
  2. Sophea

    Sophea Well-Known Member

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    Hi Darrell,

    In circumstances where you warned the client of the potential risks and they asked you to go ahead anyway, it is arguable they assumed the risk. I think it would be fair to give a partial refund, however i doubt the client would be entitled to a full refund in this case.

    Under the Australian Consumer Law services rendered must
    • be provided with acceptable care and skill or technical knowledge and taking all necessary steps to avoid loss and damage
    • be fit for the purpose or give the results that you and the business had agreed to
    • be delivered within a reasonable time when there is no agreed end date.
    If the client can prove that you failed to do this, then they may be entitled to a refund. It would essentially be up to a court to decide this, and would depend on all the circumstances and of course what of your version of events you could prove with evidence. I.e. correspondence in writing that you informed them of the potential risks and correspondence in return indicating that they understood and accepted those risks.
     
  3. Darrell

    Darrell Active Member

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    Thank you Sophea.

    Very kind of you to take the trouble and reply. I am hoping this can be sorted out without having to attend court, especially being that I am just as disappointed with the outcome after such a positive client feedback upon completion.

    Once again, many thanks for your help.

    Kind Regards
     
  4. Darrell

    Darrell Active Member

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    Hi Sophea.

    Could you please help on a couple more thoughts with regards to possibly having to refund my fees? I was wondering wether from a legal angle if my quotation in no way stated I was applying a waterproof membrane merely a decorative finish, would the onus have to be with the management agents of the building or indeed the client themselves, to ensure it was structurally maintained..ie watertight before I started works?

    In my quote also, I clearly state no areas liable to pooling water should be rendered. It is of course a waterproof membrane but is not designed to withstand water pressure from behind.

    Just trying to cover my bases really.

    I also wondered wether theoretically, if they had refused to pay, due to these circumstances, would I have stood a chance legally pursuing them for losses, and would it be for the full amount or a settlement figure ?.

    If I'm legally entitled to be paid then do you think I have grounds to keep the payment for the complete contract? Seeing as I don't believe I have intentionally done anything other than fullfil a contract which in turn was reversed, again through no fault of my workmanship or the products used, even if that implies a courts decision being the only option?

    Once again, many thanks for any help.
     

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