Browse Forums Building A New House 1 Sep 11, 2009 12:28 am Well this is the latest question that has come up in our contract. Its an HIA standard contract in NSW. We have a contract with specific models of items like Hot water systems and air conditioners stated in our contract. It turns out that our quoted model is not available any more, there are new models a little more powerful and with a different model number. The HIA contract says "20.1 If any material specified to be used in the building works is unavailable when required by the builder, the builder may ask the owner for a variation to substitute the use of similar material". To be clear none of the specified items are listed as prime cost or Provisional allowances, simply that the model to be installed is... So here is the legal question, I am being asked for an additional $1600 for the new model because the old one is not available and the new model (slightly more powerful) costs more. I can't agree. So what is the legal standpoint on this, what have others experienced? Thanks Dan Re: Any lawyers out there? 2Sep 11, 2009 7:29 am If the advice you get is that you don't have any recourse but to pay up, I'd get a few quotes from retailers 1st to determine how much the new model costs. Then you can work out whether the $1,600 is a reasonable amount..... or not, most likely & approach the builder with a counter suggestion! Seems rather pricey to me. Built the Eden Brae Cambridge 34 Family with Boston Corner Facade Re: Any lawyers out there? 3Sep 11, 2009 8:30 am The contract that I have a copy of states (note this is a Victorian HIA contract) "The Builder must give the Owner a copy of any invoice, receipt or other document that shows the cost to the Builder of any Prime Cost Item or labour and materials that relate to a Provisional Sum Item, as soon as practicable after receiving same." I think you could ask for documentary evidence as to this cost before you agree to the price, even though the item is not a prime cost or provisional item. Also another part of our contract states "In calculating the amount spent, the Builder must pass on normal trade discounts to the Owner. This does not include cash or special discounts for bulk purchasing or personal reasons." I think Southies is right, if the builder doesn't agree to providing the information I would look around to check on actual costs and if the builder pushes back I would try to go owner supplied if possible. View our blog at: http://room4acubby.blogspot.com/ Re: Any lawyers out there? 4Sep 11, 2009 11:53 am Not sure if it helps or not, but in our situation we had Kleenmaid appliances in our contract, but when they went under we were offered Westinghouse as an alternative. To cut a long story short, we ended up taking the credit for the Kleenmaid appliances and sourcing our own replacements. Worked out better for us in our situation. The builder may not offer you what the retail price is of the unit as they obviously have a builders rate ... but that builders rate should also apply to the alternative they are offering you ... the differential they have asked for seems pretty high. But something to be aware of, if you do source your own heater, you will be responsible for insuring it as it won't come under the builder's insurance (well that's in our case ... pretty sure it's a standard clause). Good luck Re: Any lawyers out there? 5Sep 11, 2009 6:09 pm Is the additional $1600 for the new model of water heater or a/c or both? Re: Any lawyers out there? 6Sep 11, 2009 6:37 pm No - not a lawyer. But had exactly your predicament. Had a reverse cycle air conditioner through builder's supplier, the old model got deleted for a new model, the new model costing $1600 more. What did we do? Questioned the builder, but in the end paid up as we are building a double story house, the air conditioner is top of the range and it will remain covered by their insurance. In the whole scheme of things, it is a small price to pay for a better airconditioner (albeit only minimal upgrade) and not having the hassle of looking for better deals again when I have other things to worry about and follow up. Blog:http://tamdaz-themajestic.blogspot.com The Majestic - Henley - Adelaide Thread:https://forum.homeone.com.au/viewtopic.php?f=31&t=20635 Day 200 23-4-10 Re: Any lawyers out there? 7Sep 12, 2009 3:31 am Thlo, its 1600 just for the Air conditioner. I still can't understand why I am liable for the change in price when in the contract the requirement is to deliver a model of A/C. Surely this is the builders problem and more to the point, I would have thought it was up to him to convince me to take a different model to that in the contract, I would think that from that poiint of view it is up to him to carry the difference in the cost. I am going to check with the CTTT, will let you know what they say. Dan Re: Any lawyers out there? 8Sep 12, 2009 2:43 pm if $1600 is the difference between the old model and new model, fair enough. Why don't you ask ask a supplier if the difference is really that much. You can get a quote from a third party supplier and supply this to the builder if there is major discrepancy between what they have demanded from you and the truth. Re: Any lawyers out there? 9Sep 12, 2009 9:30 pm I guess where I am coming to is what's the point in specifying models to be delivered if in the end teh builder can just add on any changes in cost to supply. Remember this was nto listed as a prime cost item, so my question related to whether he is obligated to supply in any case an equivalent model, even if it costs more. When the contract was signed the model was current so he should have secured a price at that time. He obviously didn't and is now passing the change in cost to me. My read of the HIA agreement is that he needs to propose a change in the materisl, not at an additional cost. Dan Re: Any lawyers out there? 10Sep 12, 2009 10:05 pm My HIA contract has a clause (12.1 in mine) specifying that if there are circumstances beyond the builder's control, then they can notify you of a variation, and apply it unilaterally IF you do not respond. If you want you can write to dispute the variation though, within 5 days. In any case I would expect them to justify the price. Metricon Riva 33 - http://herlihy-riva.blogspot.com Site start 15/03/2010 - Handover 23/12/2010 9 months and 8 days (284 calendar days) from site start to handover Re: Any lawyers out there? 11Sep 12, 2009 11:10 pm My version is NSW September 2008 and I can't find an equivalent clause. I would dispute that this is beyond his control, given that teh contract has been in force for several months and at the time of signing, the A/C was not superseded. I will post after I have discussed with Fair Trading. Dan Re: Any lawyers out there? 12Sep 13, 2009 8:19 am btherl My HIA contract has a clause (12.1 in mine) specifying that if there are circumstances beyond the builder's control, then they can notify you of a variation, My concern would be if the builder were telling me the truth Built the Eden Brae Cambridge 34 Family with Boston Corner Facade Re: Any lawyers out there? 13Sep 13, 2009 10:46 am danc12 I would dispute that this is beyond his control, given that teh contract has been in force for several months and at the time of signing, the A/C was not superseded. I dont know the full story, but I dont agree with this statement. This supports the argument that it was beyond their control as the A/C was superseded between contract signing and today and a builder doesnt purchase materials prior to them being required. I would actually expect the A/C install to be sub-contracted? danc12 I will post after I have discussed with Fair Trading. Good luck with Fair trading. Really interested to hear the outcome as this is an issue that could effect a lot of us. I've decided, after a period of confusion (my building broker told me it's probably not worth it to use a lawyer, but others have said it is a must) that I definitely will… 7 27953 4 14297 Unless there is something in special conditions the builder does not have to give you timeline. If your demolition contractor has not removed Asbestos and it was found… 12 28801 |