VIC Terminating building contract by registered post

Discussion in 'Australian Consumer Law Forum' started by Raymal, 25 October 2019.

  1. Raymal

    Raymal Active Member

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    I have sent my builder a notice of breach of the contract, referencing the breaches in the contract and giving them 14 days to remedy or else I will be reconsidering their employment. The letter has been sent registered post to the address noted on the contract being the physical address of the builder's factory even though he has a PO BOX on his invoices. My question is what happens if there is an attempted delivery to the factory and a card is left by auspost but the builder refuses to collect it from the post office? He is probably anticipating the letter as he has not turned up to do any works in weeks for a commercial fit out. Does the 14 days still count from the day of attempted delivery?
     
  2. Tim W

    Tim W Lawyer
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    Let's start from the beginning.
    You are not employing him/them/it. You have contracted with him/them/it.
    You are not his/their employer, you are his/their customer.
    Why? Why not just use the PO Box address?
    Legally? Nothing happens.
    You wrote a letter. It wasn't able to be delivered. That's it.
    You're trying to make out that your letter had some sort of legal effect. It doesn't.
    No.
    He cannot comply with a notice that he doesn't know about.
    And in any event, count for what?
    Going by what you've said above, you have given him 14 days,
    after which you will think about (that is what "consider" means)
    what to do next.
     
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  3. Raymal

    Raymal Active Member

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    Before making assumptions, the contract clause states "The first notice must set out the particulars of the alleged breach or breaches and give the contractor the opportunity to *rectify such breach or *give good reason why he cannot or will not do so all within 14 days after the date on which the Notice is served. The Notice must state that, in the event that the contractor fails or refuses to comply with the Notice, the Proprietor intends to determine the employment of the contractor by a further Notice."

    Contract states method of service to the address stated in the Form Agreement of the contract which is the builders factory address.

    Why not? if an attempted delivery card is left at the premises and the builder fails or neglects to collect the letter from the post office then what purpose does a clause in a contract requesting service by registered mail have if technically it might never be delivered? There is a clause that states this: The notices, reports, orders or other documents referred in this Clause are deemed to have been given or served as follows:
    (a) If served by hand, they are deemed to have been served on, and received by, the addressee on the date of the actual delivery;
    (b) If sent by registered post, they are deemed to have been served on, and received by, the addressee two clear business days after the day of posting.

    Would (b) mean 2 business days after sending means its received regardless of whether the builder has actually received it?
     
  4. Tim W

    Tim W Lawyer
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    Friend, if you're paying him on a tax invoice (as distinct from, say, a timesheet), and
    you're talking about a breach of contract,
    then you're not in an employer-employee relationship.
     
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  5. Tim W

    Tim W Lawyer
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    Because a person has no duty to receive their mail.
    Because a person has no duty to collect their mail in a timely way.
    Because a person has no duty to open it immediately.
    That's why deemed delivery clauses exist.
     
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  6. Raymal

    Raymal Active Member

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    I agree, but contract law dictates that I have to follow the contract clauses to a tee when informing the other party of a breach and I have to mention the clauses and breaches in my letter as well as determining the "employment" of the contractor. I dont write these contracts, lawyers do. Maybe the master builders association need to reword their contracts but that's neither here nor there with regards to my original query.
     
  7. Raymal

    Raymal Active Member

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    So back to my question then, would it be deemed delivered after 2 days of posting?
     
  8. Tim W

    Tim W Lawyer
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    Count the third busness day after posting as day zero of 14.
    Then, on Day 15, you to get to starts "considering".
    You don't get to terminate on Day 15.

    You need formal, case specific, legal advice.
     
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  9. 457Visafraud

    457Visafraud Well-Known Member

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    Well we all know that often terms on contracts are made to mislead people so to simplify the term "employment" I think you still regard it as a term of contract between the employed business and you, it couldn't be an employment because you don't pay them a salary, superannuation, work injury insurance etc. etc.
    That's the first bell ring, I would personally check the physical address and see if there is a real functioning office in there or just a dummy rented room.
    The post office will notify you regarding the failed delivery, nothing more can be done at this stage. You need to send a second letter of demand and keep record of everything and not, I wouldn't send it to PO BOX because no one will sign the delivery.
    The 14 days start from the date of the letter and excludes weekends and public holidays.
    I wish this matter won't go into legal means but if it does, you need to take it to the Court.
    The builder could still refuse to accept Court's papers but that (together with the 2 failed demand letters) will count against his company in the following legal actions.
    Regarding serving Court papers you should "employ" (which doesn't mean employment) a "licensed process servers", be careful because there are thieves out there asking $300-400 for just one attempt!
     
  10. Raymal

    Raymal Active Member

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    Thanks for your response. The office/warehouse is definitely a physical address as we signed the contracts in their boardroom. There are several office cubicles as well. As for the counting of days i think its 14 calendar days if I interpreted the below correctly:

    "Unless expressly stated otherwise, where any notice is to be given or any other act matter or thing is to be done under any provision of this contract in a stated period of days, the following days shall not be counted: Saturday, Sundays or Public Holidays."

    The notice clause states 14 days after the date on which the Notice is served. Am I interpreting this correctly?
     
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