Terminating home building contract - By owner

Howdy Crew,


I've got a few dramas with a builder, I need to explore all options and contract termination might be the only way forward. 

 

I've started a build with a builder and we were mates prior, we agreed he was going to have a set fee and then all cost were going to be on me.

He did up a contract but it wasn't signed.

To get finance I required a fixed price contract, the builder assisted me with this and a fixed price contract was written and signed by both parties, Finance was approved.

He was running the build as per our verbal agreement and invoicing when he would recieve invoices from trades and he would forward the originals to me and I'd pay him.


Wall framing is complete and the roof carpentry has been completed.

I have been sent and paid for 6 invoices to this point.

The builder and I have had a falling out, childish crap that is not worth going into but he still has his nose out of joint.

I have tried to patch things up to no avail. 

He has now referred back to the fixed price contract and re-sent the invoices 1-6 as I was in front 36k and is trying now get his hands on the 36k as per the FP contract.

I dug my heels in and said I am not repaying for work I have already paid for, things have got uglier from there.

He has since threatened me that he'll get me arrested for fraud, he's been extremely abusive and recently threatened to break my jaw.

This is all in writing in email or text. He gets on the booze in the arvos and gets his rant on.

This bs has been going for two weeks now and no works have been completed since.

I am/was willing to try and keep things moving ( at least until lock up ), the last thing I really want to do is end up in court with high lawyer cost and a build that drags on for months when winter is on its way.

I want to know if anyone has terminated a contract based on abuse/threat of violence or has advice that may help me get this bloody mess sorted out!!

I appreciate your help in this crappy situation,

Cheers - TB


marble's picture

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 Is the bank paying ot you ?

Mon, 2024-02-19 20:07

 Is the bank paying ot you ? Fixed price contract should only have 6 draw stages ?

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Da pirate's picture

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Police ..

Mon, 2024-02-19 20:23

Police and lawyer .. in that order..

Good luck mate .. cheers pirate 

timboon's picture

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 Yeah the bank is paying but

Mon, 2024-02-19 21:05

 Yeah the bank is paying but he knew I had a large portion in cash in my account.

He started the build prior to finance approval but when he sulked because I gave him some shit back he then used not getting notification of finance approval ( broker made a clerical error ) as his reason for not realising we had a FP contract and that's why he would invoice as he pleased.

He's full of shit and must've bullied clients before. Now that I'm refusing to give him what he wants he's well pissed off.

Pirate, yep I easily could do that but contracts are drawn up to protect builders.

I was hoping I could put my foot on his throat so to speak from a contractual breach point of view.

It's complicated and I don't know enough about it.

sea-kem's picture

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 Keep all emails and texts

Mon, 2024-02-19 21:07

 Keep all emails and texts etc, if he's threatening you then he's the one in the shit. 

I'd be calling his bluff, as Pirate says get some police and legal advice. Most lawyers won't proceed/charge you unless there's a good chance of  winning. 

Sounds like my abusive piss head of a brother. 

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timboon's picture

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 Eeek sorry to hear that

Mon, 2024-02-19 21:22

 Eeek sorry to hear that Andy....

 

Oh I have no doubt if it ends in court he's buggered.

 

I was hoping to get his autograph on a contract termination document before that stage.

 

His cash flow is no good so he won't want solicitor fees.

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 What a mess!Be ware that he

Tue, 2024-02-20 07:58

 What a mess!
Be ware that he may get some of his legal representation provided as part of beinga MBA member, at least initially

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I'd be inclined to follow

Tue, 2024-02-20 06:24

I'd be inclined to follow Pirate's advice and break that cycle of threats and abuse as the unfinished house issue alone will be causing enough stress.

Regarding the contract, a lawyer in the first instance can give you the legal advice and write you up a letter to present to the builder to attempt to mediate the situation. I'm assuming you didn't pay him the $36k in cash so you'll have a paper trail. Is there a builders registration body you can take the issue to to mediate on your behalf?

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Piggy's picture

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texts

Tue, 2024-02-20 08:04

first thing.... If hes threatening to break jaws give Petermac  a private message and see if he can give him the old one two for ya hahaha

 

Second.. Is the "Verbal contract" or what you agreed apon in text message? Text messages can be used as a legal and binding contract if both parties agreed on the conditions. If this is the case, lawyer up and go for it!

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timboon's picture

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 The set fee he was happy

Tue, 2024-02-20 09:42

 The set fee he was happy with is 43k

 

This is even stated in the FP contract.

 

There has been a lot of back and forth in the past couple of weeks as you can imagine, he has stated in an email "the two contracts".....

 

He's claiming this morning the "Adjudication" process has started, looks like he's going to try and get the 36k....

 

Fkn frustrating!!

 

The only thing he has on me is, my broker made a clerical error telling him the finance has been approved.

 

Thats why he is claiming he was running a cost plus contract and not following the FP legal contract...

 

 

 

 

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 The set fee was 43k? You've

Tue, 2024-02-20 09:56

 The set fee was 43k? You've paid 36k? Can he only go at you for the remaining 7k then? Which would be if my math is correct around cost (36k) + 20% which seems like a general rule in the  building game. Is this correct or am I not following. No way can he even think about reeming you anymore than what was agreed of the 43k?

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scotto's picture

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no signed contract!

Tue, 2024-02-20 09:53

thats him fucked IMO.... NO signed contract, no start!

 

if hes abusing you in writing, hes not only in a lot of trouble, but hes obviously severely retarded. 

 

the big problem here is obviously you both think youre right. he thinks theres a contract, so hes gold. you think because you havent signed it, youre gold. the law will have to decide this im afraid (I personally reckon youre gold here though). 

 

I personally think you should immediately get the poloice involved, especially re the written and verbal threats.

 

you will have to start doing up a timeline of events, speaking to legal teams, etc. take notes, times/days, and names of any people you speak to. delaying any legalalities now, will essentially delay the outcome of this scenario.  

 

 

timboon's picture

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 G'day lads, Sorry if I'm

Tue, 2024-02-20 10:48

 G'day lads,

 

Sorry if I'm bouncing around here.

 

The ONLY signed contract was the fixed price contract.

 

We only got that for finance purposes but unfortunately it's the only signed contract.

 

My finance wasn't approved and building started because he knew I had cash in bank.

 

The 36k he's trying to get his hands on is the difference between actual cost ( what I've paid up until wall framing competition with original invoices) and what the FP contract adds up to at wall framing completion.

 

 

 

 

davewillo's picture

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 I agree that you need some

Tue, 2024-02-20 10:54

 I agree that you need some proper advice Boon. You'd be surprised how many jobs, even large multi-million dollar commercial builds, never have a signed contract. I'm building with one of the big builders currently and they wont step one foot out of their lane in terms of procedures. Can be annoying at times but prevents situations like yours.

I think you're in a strong position so maybe police and legal intervention will see him shoulder arms.

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timboon's picture

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 Cheers Dave, Yeah its a rock

Tue, 2024-02-20 11:11

 Cheers Dave,

 

Yeah its a rock and hard spot....

 

As much as I want to fuck him off, I ideally would like to keep trucking and get it locked up asap....

 

Arghh

 

 

Alan James's picture

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Interesting

Tue, 2024-02-20 12:20

If I understand this correctly the original intent was that there be two Contracts in place. The first Contract was for the purpose of securing finance and consisted of a fixed price. This was signed by both parties. It was proposed that the second Contract would supersede the first. The pricing structure of the second Contract was based on a cost plus or reimbursable basis plus a fixed fee of $43k. This second Contract was not signed. Despite the second Contract not being signed both parties appear to have acted as though the second Contract was in place. This is evidenced by the fact that the Builder sent you invoices from trades and you would pay him the cost of those invoices. I expect that whilst the second Contract was never executed the Terms and Conditions of the first Contract would roll over unchanged in the second Contract. The first Contract should contain clauses that pertain to Suspension of Works, Termination by the Builder, Termination by the Owner, Notices and Settlement of Disputes. These clauses remain in effect either way and both parties need to fulfil their contractual duties and responsibilities in accordance with those clauses.

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timboon's picture

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 Hi Alan, Initial contract

Tue, 2024-02-20 15:26

 Hi Alan,

 

Initial contract was fixed price with provisional sums paid by me.

 

This was sent but not signed.

 

While this was going on my broker informed me banks won't allow cost plus.

 

Then we had to write up fixed price and this was signed.

 

He didn't wait for finance he kicked off the build.

 

He even sent a statement showing how far ahead we were and that we were making good progress.

 

Today he claims he's lodged adjudication with Jackson McDonald the MBA law firm and he's trying to go me for the 36k plus another 39 which is total bs for labour and rafters.

Alan James's picture

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Initial Contract Cost Plus

Tue, 2024-02-20 16:02

Don't you mean the initial Contract was Cost Plus? When your broker informed you the banks won't accept a Cost Plus Contract a Fixed Price Contract was then prepared and signed.

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Alan it is my belief if you

Thu, 2024-02-22 17:49

Alan it is my belief if you start works without sigining the contract doesnt that mean you accept the contract even though there is not actual signed copy? 

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.

Thu, 2024-02-22 17:50

.

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If you commence work

Thu, 2024-02-22 17:56

without a signed Contract you do so at your own risk.

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 If you have signed a fxed

Tue, 2024-02-20 16:49

 If you have signed a fxed price contract that will be all the courts will be interested in. Handshakes don't cut it when the shit hits the fan. Go see a lawyer boon and get on top of it before it costs you a lot more.

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Timboon

Tue, 2024-02-20 19:15

Pm sent

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timboon's picture

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 Sorry Alan, Yep spot

Tue, 2024-02-20 21:11

 Sorry Alan,

 

Yep spot on.

 

Cost plus first not signed.

 

I'll update you fellas later, been a bit of a turn of events in my fav hopefully.

timboon's picture

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 Wow this site never ceases

Tue, 2024-02-20 22:38

 Wow this site never ceases to amaze me...

 

There are some bloody legends that bend over backwards for people they don't know and perhaps will never know on here!!...

 

Alan has reached out with an offer to help a little where he can!!

 

There was a small turn of events today, perhaps too early to rip the top off a Coopers Green Frosty....

 

My builder has been claiming the reason he flipped back to the FP contract was because he found out on Jan 30 that the Finance was for FP. He is claiming I was deceitful and mislead him to that point.

 

I had finance approval on the 13/11/23, the broker made a clerical error and the builder ( MW ) was not informed as the other broker was CC'd twice instead of the builder when I was notified of finance approval.

 

He did not ask for finance details for another ten weeks approx, he asked about bank payments which I had not used but at no point did he ask for proof of finance until late Jan.

 

When he did ask for finance the broker realised the clerical error, apologised and MW was sent finance approval proof.

 

That was the same time we had a falling out and he accused me of pouring my shed slab without a shed building licence which I had - He told me I made a massive mistake and told me I was not allowed on the block without his written permission.

 

I ignored this BS, sent him the shed building licence and things continued to spiral.

 

This was the time he resent all invoices and reverted back to the FP contract. Again all along claiming that when he got the approval, it was only then he realised finance was for the FP contract ( he fkn orgainsed the contract, he signed and issued the contract ).....

 

Anyway..... Today I spoke to the broker who MW claims I colluded with and used the money on another investment, He's going to get us investigated apparently ( thats another story!! ), he was abusive toward the broker in texts and email so I contacted the broker and forwarded some of the bs that was said.

 

The broker reminded me that no where in the ANZ PDF finance approval letter did it even state that finance was for the FP contract, and he was correct after having another look.

 

I sent that through to the builder and he tried to pull the wool over my eyes with BS but I fired back having none of that and now he's realised he's been called out, it was all a fasade. Now he's after the Bank and the Broker....

 

His emails today to the broker were embarrassing, he claims he's calling Mortgage Choice head office tomorrow in Perth and getting my broker investigated, He reckons ANZ have made a clerical error by not including a clause of proof of contract in their approval....

 

Anyway, it yet again proves he's just being a cock and wants 36k of free money for works already paid for...

 

Thanks for your support and replies lads, and of course a special thanks to Alan.

 

Sorry about the long winded message, I will keep you posted...

 

Eh one more thing, he was very pushy with the initial cost plus contract and I kept stalling and didn't get it signed.

 

When the FP contract was written by that stage I just signed it and got on with things, If you are about to engage with a builder read the bloody thing carefully and don't be naive like I was...

 

The building contract is from Master Builders or the likes and they are drawn up to protect the builder, be wary!!

 

Cheers lads,

 

TB

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 Nice mate, like I originally

Wed, 2024-02-21 07:12

 Nice mate, like I originally said call his bluff. I've had similar happen over the years with my business and I'm ruthless when it comes to carnts trying it on with me.

I'm a straight shooter where the business is involved, keeps things simple.

Sounds like you're gradually straightening things out.

Alan is a champ of a bloke!

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Legend Alan

Wed, 2024-02-21 09:54

 

 Always someone on here who is willing and able to assist, it's bloody brilliant.  

 

Good luck Timboon hope it's sorted in your favour soon. 

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Onya Jamsey

Wed, 2024-02-21 09:57

Onya Jamsey

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Faulkner Family's picture

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Looks like it may sort out .

Wed, 2024-02-21 10:07

Looks like it may sort out .

Lesson learnt. Don't deal with mates on big things like this, they turn to shit quite often

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 Good stuff Alan and good

Wed, 2024-02-21 10:38

 Good stuff Alan and good luck Boon!

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 PGFC member and lure tragic

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Just completed a build over last 18 months

Wed, 2024-02-21 12:43

with a Master Builders contract.  We had a fixed price contract and then labour and materials went up, so builder delayed as he couldn't get contractors at his price and said they weren't available.  The contract said that he could delay if he couldnt get labour or materials.  It didn't say that he could delay if he couldn't get contractors at the right price.  So after numerous delays, I found contractors, but they weren't at the price he had allowed.  He had to accept the contractors I supplied and paid the going rate, so the build then continued.  After finding the first 3 contractors he finished the job using his own contractors.  Just be aware that he may try to stuff you around by delaying the job.  Check out that section in the contract.  Good luck.

timboon's picture

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 Cheers Wagyl, Because this

Wed, 2024-02-21 22:00

 Cheers Wagyl,

 

Because this has turned as sour as it has, I feel like termination is probably the best way forward for both of US.

 

TB

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 I wouldnt even consider

Thu, 2024-02-22 06:37

 I wouldnt even consider using him, being unhinged theres a million ways he can make sure you are reminded in the future of what happened

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 Give a man a mask, and he'll show you his true face...

 

 

The older you get the more you realize that no one has a f++king clue what they're doing.

Everyone's just winging it.

 

NORUN NOFUN's picture

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Geez what a shit time Boon

Thu, 2024-02-22 12:42

Geez what a shit time Boon and good on Jamesy for helping out.
Good luck with everything and hope it all gets sorted mate.

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Couldn't think of anything

Thu, 2024-02-22 14:00

Couldn't think of anything worse, hopefully you get it sorted, ya dickhead mate paid what hes owed, nothing more and you free to move on. As above it needs to be reported to the police, recon he will continue even after the financial side is sorted.

I had a nightmare building also, between council fk ups and neighbors from hell, one of who worked for the council costing me extra time, money and untold stress.

If your dealing with Vic at MC tell him I said hi, Top bloke and good operator.

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 shit place to be in Timboon

Thu, 2024-02-22 17:59

 shit place to be in Timboon as i have been in similar position before. a job i recently started with a job as a subbie with a new company i hadnt contracted to before with a lump sum contract (even though i worked for them on payrole 12 years ago). i decided to get a lawyer to read the contract prior to me signing and starting on the job even though they were getting pushy. it was the best thing i have done prior to commencing a new job. For the $1800 it cost me it has already saved me a lot of stress as i had provisions written into my contract to protect me. i will do this now for every job i do now. if i was building a new house i would do the same as alot of builders have alot of stuff in their contract that the average person wouldnt pick up.  

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Alan James's picture

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Good advice eziliving

Thu, 2024-02-22 19:04

Following retirement, I operated a part time Contract Consultancy business to assist contacts I had made during my working life within the construction phases of projects within the mining and oil & gas sector in WA. I never advertised or sought work but it kept me busy. I always recommended that it was at the tender stage that contractors / subcontractors should seek a review of the T&Cs. $1800 is a up there imo, but money well spent as you say.

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 This might be better suited

Sat, 2024-02-24 07:31

 This might be better suited to Friday funnies, 

A builder who was working for me tells the story.

A brickie was finishing of the chimney on a build when the client started demanding extras at no cost, or wasn't going to pay the full amount.

The brickie did the extra, and was paid in full, but not for the extra work.

When the client lit up the fire, the house filled with smoke.

The brickie was called back,  and says he knows the problem and how to fix, it's a design flaw in the chimney. The client stats no mate I looked up there and it's clear, you can see the sky.

Brickie says, well, it's going to cost a couple of thousand, but I guarantee I can fix it.

The client haggles the price is agreed to, and the job is planned.

The brickie says due to the dust, the client will have to vacate for about 3 days, as everything inside will be covered in drop sheets.

On the day, the brickie turns up, finds the key enteres, puts a tarp in the fireplace, goes on the roof, dropping a half brick down the chimney, then rattles a bit of chain down there, jobs done.

He cleans up the broken glass on the tarp, and leaves.

When he realised the client was going to stiff him, he put a piece of glass in the top of the chimney. 

He got paid for the extra work.

Posts: 198

Date Joined: 08/09/11

 This might be better suited

Sat, 2024-02-24 07:31

 This might be better suited to Friday funnies, 

A builder who was working for me tells the story.

A brickie was finishing of the chimney on a build when the client started demanding extras at no cost, or wasn't going to pay the full amount.

The brickie did the extra, and was paid in full, but not for the extra work.

When the client lit up the fire, the house filled with smoke.

The brickie was called back,  and says he knows the problem and how to fix, it's a design flaw in the chimney. The client stats no mate I looked up there and it's clear, you can see the sky.

Brickie says, well, it's going to cost a couple of thousand, but I guarantee I can fix it.

The client haggles the price is agreed to, and the job is planned.

The brickie says due to the dust, the client will have to vacate for about 3 days, as everything inside will be covered in drop sheets.

On the day, the brickie turns up, finds the key enteres, puts a tarp in the fireplace, goes on the roof, dropping a half brick down the chimney, then rattles a bit of chain down there, jobs done.

He cleans up the broken glass on the tarp, and leaves.

When he realised the client was going to stiff him, he put a piece of glass in the top of the chimney. 

He got paid for the extra work.

timboon's picture

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 A quick little update, The

Tue, 2024-02-27 23:57

 A quick little update,

 

The builder has just copped a left and a right  from Alan with me cheering in the back ground....

 

He hasn't hit the canvas as yet but his knees are looking wobbly!!!

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LIKE!

Wed, 2024-02-28 09:59

(DOUBLE THUMB EMOJI)!!

davewillo's picture

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 Good stuff Boon! Well done

Wed, 2024-02-28 11:19

 Good stuff Boon! Well done Alan!

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Rick's picture

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Nice

Thu, 2024-02-29 20:39

Keep at it guys  

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B builders

Fri, 2024-03-01 08:36

I can sympathise with you re builder hassels, I had massive drama with a so called reputable builder many years ago, ended up being nearly best friends 

with builders registration board (don't know if they still exist ) who sorted out most of the b/s

Hopefully all is better for you and your family once sorted

timboon's picture

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 Quick update as I saw Mooses

Sun, 2024-03-17 04:45

 Quick update as I saw Mooses post...

 

Alan is spending hours on this!!

 

Like bloody hours and I can't thank him enough!!

 

The builder has been a bloody mongrel and continues to get abusive when on the booze...

 

At no point in the last 6/7 weeks has he had anything productive or proactive to say to me to try and mend our tiff and get on with things, his technique is to try and bully and scare me into thinking his bs builders lingo will bluff me into handing over money for invoices that have already been paid...

 

Now because of Alan, he is back-peddalling, today basically pleading for me to come up with/sign an offer to cease the contract at Lock Up stage ( which is what Alan and myself are aiming for ) , He claims his health is detiorating because of the stress of this project... 

 

He is so full of shit and has tried to pull the wool over my eyes but it doesn't work while I have Alan in my corner!!

 

We don't yet have a variation to the contract to get rid him off at lock up but we are very close.

 

I'll keep you posted...

 

TB

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Good doogs

Sun, 2024-03-17 09:41

 Hope it all goes your way mate

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Fingers crossed

Sun, 2024-03-17 10:25

Good Luck!!!!

davewillo's picture

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 Heading the right way

Tue, 2024-03-19 10:40

 Heading the right way hopefully Boon.

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Good to see this got some

Fri, 2024-03-22 15:24

Good to see this got some traction. 

 

As a note to others, the MBA Contract is indeed geared towards the Builder.

 

Recommend anyone pays someone for a review of T's & C's for any Contract to ensure they are protected. Don't blindly sign and think all will be OK - I mean it is, until it isn't... And that is when, and only then - the Contract comes out.. 

 

For those that say there is no Contract without a signature, that's not technically true.

If there is an offer and acceptance a Contract is formed. That renumeration for a service is requested, and payment made on the basis of the agreement - this confirms the Contract.