LawAnswers.com.au - Australia's #1 Legal Community

LawAnswers.com.au is a community of 10,000+ Australians, just like you, helping each other.
Ask a question, respond to a question and better understand the law today!
Join us, it only takes a minute:

NSW Building Contract with Builder - Did I Repudiate It?

Discussion in 'Property Law Forum' started by sunaus, 2 March 2015.

  1. sunaus

    sunaus Member

    Joined:
    2 March 2015
    Messages:
    2
    Likes Received:
    0
    I have a home building contract with the builder which started on 03-May-2014 (contract is Home Building Contract for Work over $5,000 from NSW Fair Trading), and the works commenced on site on 13-May-2014. On the contract, all works must be completed within 11 calendar weeks from the day the work is due to commence.

    After discussions with the builder, when I raised my concerns that the works were not complete and that defective works had not been rectified, I initially informed the builder in writing on 30-Sep-2014, of my intention to terminate the contract.
    -------------------------------------------------------------------------
    30 Sep 2014
    Re: Home building Contract between [Moderator redacted] SUN dated 3rd, May 2014
    Dear builder,

    In accordance to Clause 25 of the above mentioned contract between our parties, we regret to inform you that we wish to terminate the contract with effect from Sep 30th, 2014. The contract is being terminated as there are too many defective works and you fail to remedy them. Also the project was delayed 11 weeks due to undiligent work by you.

    The serious defective works include:
    1. Brick wall of master bedroom on the east side. The wall has 25mm derivation within 2 meters;
    2. The other brick wall. The wall has around 10mm derivation within 2 meters;
    3. Timber frame of all new construction. The timber frame has 10 to 20 derivation within 2 meters;
    4. Roof hanging of master bedroom. The distance over the edge of gutter is only 25mm, and the standard is 50mm;
    5. Ceiling in kitchen has 13mm derivation and it should be 4mm within 2 meters;
    6. Plasterboard wall in formal dining (not plumb 25 mm within 2 meters)
    7. Plasterboard wall in the bedroom with skylight (not plumb 25 mm within 2 meters)
    8. Plasterboard wall in sunroom (not plumb 20 mm within 2 meters)
    9. Plasterboard wall in master bedroom (not plumb 10 mm within 2 meters)
    10. Brick piers are not plumb.

    Following the issue of a notice under this Clause no unfixed materials or fittings shall be removed from the site by the contractor.

    Thank you,
    Sincerely
    The owner
    -------------------------------------------------------------------------


    The builder had sent me an email dated 11-Oct-2014, stating that he did not accept the termination letter dated 30-Sep-2014 and asked me to continue the contract, so he could be paid the remaining money for the contract works.

    In accordance with Clause 25 of the contract ‘Termination of contract by owner’ which states that ‘the owner may, if such default can be remedied, notify the contractor in writing that unless the default can be remedied within 10 business days or such longer period as specified, the owner will terminate the contract’.
    Therefore, in order to give the builder the required ‘10 business days’ notice and the opportunity to remedy the defective works, I issued a subsequent ‘follow-on’ letter dated 11-Oct-2014 to the builder, of my intention to terminate the contract.
    -------------------------------------------------------------------------
    11th Oct 2014
    Sub: Notice of fixing defective works

    Dear builder,
    It has been brought to our notice that the defective works on our construction site has been warning, unless they are fixed in the following seven days (before 20 Oct 2014). The defective works are as per below:

    1. Two brick piers on west side below kitchen. One has 30mm deviation and another one has 22mm derivation. This is a serious defective which can cause damage at any time, and it needs to be fixed as soon as possible.
    2. Brick wall of master bedroom on the east side. The wall has 20mm derivation within 2 meters. This is also a serious defective which can cause damage, and it needs to be fixed as soon as possible.
    3. No weep holes above three window and sliding door in the extension area;
    4. Roof hanging of master bedroom. The distance over the edge of gutter is only 25mm, and the standard is 50mm;
    5. No flashing or waterproof under sliding door of garage;
    6. There are gaps between angle and waterproof level under tiles at three bathrooms;
    7. Ceiling in kitchen has 13mm derivation and it should be 4mm within 2 meters;
    8. Gyprock wall in formal dining(not plumb 20 mm within 2 meters)
    9. Gyprock wall in the bedroom with skylight (not plumb 25 mm within 2 meters)
    10. Gyprock wall in the bedroom 2 (not plumb 25 mm within 2 meters)
    11. Gyprock wall in sunroom (not plumb 20 mm within 2 meters)

    We have discussed with certifier and independent building consultant, and they all agreed the above works are defectives and should be fixed as soon as possible. If you don’t agree the above defective works, you can consult fair trading or independent building consultant in the next three days.

    Please make an appointment with us before you come for rectification. We request you must remedy the defaults listed before 20th Oct 2014 and failure to comply will mean that the contract may be terminated by further notice.

    Sincerely
    The owner
    -------------------------------------------------------------------------


    After the builder had not returned to site to continue or rectify the works, and even no any response to discuss the previous notice, I issued a letter dated 25-Oct-2014 to the builder, terminating the contract with effect from 25-Oct-2014.
    -------------------------------------------------------------------------
    25 Oct 2014
    Re: Home building Contract dated 3rd, May 2014

    Dear builder,

    Ten business days has passed after we sent the letter “Notice of fixing defective works” dated on 11 Oct 2014. We have never received any response from your side. We regret to inform you that the contract has been terminated with effect from 25th October, 2014.

    This decision is made based on Clause 25 of the above mentioned contract and the following serious defective works which we have already noticed you to come for rectification. Following the issue of a notice under this Clause no unfixed materials or fittings shall be removed from the site by the contractor.

    The serious defective works include:
    1. Two brick piers on west side below kitchen. One has 30mm deviation and another one has 22mm deviation.
    2. Brick wall of master bedroom on the east side. The wall has 20mm deviation within 2 meters.
    3. A Serious tilt between walls and all shower faucets installed by unlicensed plumber. This problem makes it impossible to install shower set as usual, and it leaves very ugly finish even though installed only to use.
    4. No weep holes above three window and sliding door in the extension area;
    5. Roof hanging of master bedroom. The distance over the edge of gutter is only 25mm, and the standard is 50mm;
    6. No flashing or waterproof under sliding door of garage;
    7. There are gaps between angle and waterproof level under tiles at three bathrooms;
    8. Ceiling in kitchen has 13mm deviation and it should be 4mm within 2 meters;
    9. Plasterboard wall in formal dining, bedroom with skylight, bedroom two and study room (not plumb 20-25mm deviation within 2 meters)

    Starting from 25th Oct 2014, you have no right to access the property without our permission, and it will be illegal if you do so.

    We allow you three days to contact us to discuss the remaining issues (by 4pm of 29 Oct 2014), otherwise we consider that you have no desire to reach any agreement with us.

    Sincerely
    The owner
    -------------------------------------------------------------------------


    I know I can get a home building solicitor help me for this case, but unfortunately I did send all letter by myself because I am ignorance.

    I think probably I repudiated the contract on 30-Sep-2014, but the builder did not accept it, so I think it was fixed. Overall, did I repudiate the contract under contract law? Can you give me the rough idea?
     
  2. Michael T

    Michael T Well-Known Member

    Joined:
    9 April 2014
    Messages:
    151
    Likes Received:
    22
    Hi @sunaus,
    Well that was quite a long read!
    From what you've written, it seems like you terminated the contract in accordance with Clause 25 of the contract because the builder didn't remedy the defect in the time frame. Is that what you think?

    Obviously, nothing can replace personalised legal advice from a lawyer (Get Connected with the Right Lawyer for You)
     
  3. sunaus

    sunaus Member

    Joined:
    2 March 2015
    Messages:
    2
    Likes Received:
    0
    Thanks so much for your reply.
     

Share This Page

Loading...