SA Sign a Second Contract - Get a Discount?

[rhapsody rue]

Hello, I'm hoping someone can assist with my enquiry under Australian Consumer Law. Currently we are waiting to reach agreement with a kitchen company to revise and fix issues to a custom made kitchen. Errors were incorrect spacing for openings and electrical appliances, even though they had all brands and model numbers to appliances. It is nearly a year now since kitchen should have been completed, and most of the sting them at all, as theymonies have been already paid less the final amount. It has been dragged on for so long it has left us not tru chop and change revisions to suit their interests. Whilst we wait on some final revisions, so we can hopefully be with a working kitchen we are trying to figure out if we need to sign a second contract.

We have already a legal contract from a year ago, but they want us to sign a second (more of a promissory note really) that once the kitchen is complete, we need to pay the final 4,500. This is already in the first contract so, why a second?

We have already made known to them about 5 months ago that we would appreciate a discount, putting aside all the heartache they put us through and time off work, only on the basis that the kitchen was not fully functional within the time frame they gave us initially (8 weeks).

We have been so caught up with getting the kitchen working that money has been the last thing on our minds. To this day we have received no goodwill from them, and wish to have the option of receiving a discount. They have made it clear that no extra work will go ahead unless we sign a second time. Is this legal under contract law? Should we just give in and sign again and pay the full amount owing? Or do we dig our heels in and ask for a discount?

Thanks.

 

[Sarah J]

Hi rhapsody rue,

No, it is not legal. If they contracted to complete the kitchen according to specifications in the first (original) contract, they cannot turn around and ask you to sign a second contract, with altered terms, promising exactly the same thing as they had promised in the original contract. They already owe you this. They must deliver this. If they don't, you have an action for breach of contract. They cannot ask you to enter into another contract in exchange for the same promise.

In legal terms, there is no consideration for the second contract, it is not legal.

Ask the to finish the kitchen and give you a discount (in the form of compensation) for the delay. If they refuse to do anymore work on the kitchen, they are in breach of the original contract.

 

[rhapsody rue]

Thanks for the information. In our case they have finally agreed to change our fridge altogether(at their cost) has the design and working plan was not at all suited to our fridge, original fridge model number is in original contract. The design is not changing as such more that we are happy for them to give us a similar fridge rather then pursue them to rip out half the kitchen. Does this change the original contract? We don't think so as we contracted them to give us a custom woking kitchen and still fail to see why we need to sign another. Does a second contract need to be drawn up on the basis they are changing fridge?

 

[Sarah J]

What did you agree to in the original contract? What did they promise to deliver? Were there plans included in the original contract?

You do not need to sign a completely new contract. You can just have the new agreements made in writing, signed by the parties, and this new agreement will amend your original contract. This can be like an annexure to your original contract.

Every time you and the contractors reach an agreement about something, it is best to record the new agreement in writing, dated and signed. If you cannot get the new agreement signed, have it down in writing nevertheless for your records so that you can later point back to it as support for what was promised.

 

[Tim W]

I agree with @Sarah J .
You either got what you signed up for, or you did not.

Remember, all you want is for them to "stick to the deal".

And don't sign anything else.

 

[rhapsody rue]

Thanks everyone for this valuable information-was wondering if one asks for compensation on a 30,000 kitchen(without appliances) - out of contract by a year as the company continue to drag their feet to lessen their costs, would $500 be acceptable? I have a meeting soon regarding some other issues with the kitchen but do not want to hold up completion over compensation-on the other hand they have stuffed us around so much, and to this day we have received no goodwill. They are of the belief that because they are to replace our fridge(replacing fridge saves them from re doing half the kitchen over again) with a slightly more costly fridge that is more then we should get. Never mind that we are going to lose 65 litres to a smaller fridge! anyway how does one work out compensation?

 

[Sarah J]

It really depends on what you originally sign up for. Did the plans agree on a kitchen that would accommodate a fridge of a larger size?

In terms of compensation, it is best if you can justify the amount as a loss caused by the breach. Therefore, are you having to rent alternative accommodation due to the delay on your kitchen? How much does this alternative accommodation cost? Are you having to eat out because the kitchen is not completed? How must more are you spending by eating out as opposed to eating in? In turns of losing 65 litres, are they supposed to be paying for the fridge under the original contract or is this a good will offer? Will you be losing something from a smaller fridge, apart from inconvenience and personal preferences?

 

[rhapsody rue]

Hello, We moved in last year and the kitchen was supposed to be finished before moving in. It is more the interruptions this year of them coming in and out, grudgingly fixing up things up one at a time(there were multiple errors due to their lack of measurements in working plan). Time of work and plenty of emails that have taken time and caused stress/inconvenience. However saying this we have not been able to use our crisper draws correctly(fridge) and the bi-fold cupboard door does not open at all (which is our largest storage area). The main thing is we have not tiled or put up range hood, as these cannot be done until kitchen is completed.
The appliances are listed in the contract but were supplied and paid by us separately.
To give you one example of the frustration we went through; at one stage they told us the screws on the side of the oven were wrong(not their lack of width in cabinetry)and this went on for 6 months. When they finally came around to address issue, they went to change screws, only to find they were fine, so in the end they had to redo bench top edges to un wedge the oven. We have gone through hell, but realise compensation is paid mainly in instances were one can prove financial loss.
They think the fridge is a good will offer but fail to realise we will be worse off by 65 litres. Can we claim compensation just based on this and the fact it's out of contracted completion date(as well as no tiling or range hood)?

 

[Sarah J]

You would certainly appear to be entitled to compensation for breach of the time frames as well as breach of the specifications of the kitchen.

Is there a penalty for late payment of contractor fees? If so, what is the rate? You could use this as a starting point for estimating compensation for delays in delivery. The rationale goes that the interest rate paid on top of payment instalments that are late should also be imposed upon the other side for late delivery of services after a reasonable time.

 

[rhapsody rue]

Hello again, We have come far- thanks to This legal forum.
In the end we reached an agreement, basically them to fix the mess up without it costing us an extra cent. The whole process has been trying and exhausting and we chose to leave the ask for compensation out. It's been a year now and we just want this to be over!
So we have signed with the aid of consumer affairs some type of agreement that all work stated in the agreement will be finalised within 30 days. That was last week. A couple of days later I questioned again one particular aspect of their revised drawing as after re measuring at home I felt it to be incorrect. (The same question was raised at the meeting but they guaranteed us there would be no issues.) After the signing of the consumer agreement they have turned around and stated now there would be a problem and they would have to change the hinge to one door.(this will alter the appearance of the outside door)
We are angry as we had a sinking feeling all along they were lying , in this case due to their breach of specifications the bench top should be extended as to correct their mistake(our designer(employed by them) told us that months ago. They led us on under the belief the designer was wrong and no changes had to be made to the door. Then after the signing they admit change to door had to be made so it can work. We are not overly concerned at this stage as the contract signed does not state the change, so they can come in and do changes as listed in contract but at the end of the day our kitchen will not be fully functional.
To this day they have ignored two emails sent asking for them to give us more details re the change of hinges along with if they want to touch the door in question-the consumer contract would have to be amended with agreeance by us.
Do we have a right to stop them from changing door as it is not in the agreement? if anything the revised drawings that formed the basis of our last meeting showed this area to be perfectly fine in radius-we questioned it-they said it was perfectly fine. We really would like an end to this but cannot accept a hinge that will be obvious from the other doors when doors are closed. They have dragged this on for so long as to lessen their costs, and even in the end still trying at the cost of the look and feel of kitchen chosen. Hope this makes sense! any advice again would be great.