Browse Forums Building A New House 1 Jan 14, 2010 8:57 pm Hi there I first apologise for posting anonomously, we are strong posters and I think the builder (if bothering to read) could work it out. I am building in NSW under a HIA contract. I was just wanted to see if anyone else got their "Merry Xmas" Extension of Time Notice. A Notice claiming a 5 week "industry shutdown" extension of time was just received. However, I propose disputing this on the grounds that work has already commenced for this year, and therefore there has been no such delay (they worked up until Xmas eve and returned the Monday after New Years). I was also thinking for those out there who may not be so lucky with work commencing already, there should be grounds to dispute the 5 week extension of time on the basis that the scope of the delay is not yet known and the builder should wait until work commences (at most the industry shutdown is 5 weeks - so there is no loss). Anyway, I wanted to see if others have this issue, if this is a general problem, or if peple have had past success (or otherwise) with disputes. All advice appreciated Regards. Re: Help! Builder wants to claim the 5 weeks industry shutdown! 3Jan 15, 2010 5:15 am Does your contract state 5 week Christmas shutdown? Mine states 3 weeks. This is an important point. If they worked right through the shutdown then this is also an important point. Demolition August 2009, Construction Started September 2009, Completed December 2010 Re: Help! Builder wants to claim the 5 weeks industry shutdown! 4Jan 15, 2010 6:51 am Our builder automatically includes an extra four weeks for Christmas in their contracts for builds that are scheduled to run over that time. Since our build began in February, that time didn't need to be included in our days. They certainly don't claim delays to cover it - it's an expected delay that should be built into contracts. Whether or not some trades work during the period is irrelevant in most cases. What does your contract say about claims for delays - it's usually pretty specific about what's included. There can be some rubbery clauses though. If you're concerned, get some legal advice on your contract wording. Re: Help! Builder wants to claim the 5 weeks industry shutdown! 5Jan 15, 2010 5:21 pm People are asking about our specific contract.
It is a standard off the shelf HIA NSW Residential Building Contract for New Dwellings (Special Conditions not relevant here). Clause 9 Delays and Extension of time 9.1 The builder is entitled to a reasonable extension of the contract period if the building works are delayed by the builder suspending the building works under Clause 32 or from a cause beyond the sole control of the builder including: (a) a variation request ... by owner (b) an act of God .... (c) adverse weather ... ... (j) the industry shutdown being a 5 week period commencing on or about 22 December each year. 9.2 The builder is to give the owner written notice of an entitlement to an extension of time detailing both: (a) the cause of the delay; and (b) the extension of time, within 10 working days after becoming aware of boh the cause and the extent of the delay. 9.3 If the owner wishes to dispute the builders entitlement to an extension of time the owner must, within 5 working days of receiving the notice, give the builder a written notice: (a) disputing the extension of time; and (b) detailing the reasons why the extension of time is disputed. Re: Help! Builder wants to claim the 5 weeks industry shutdown! 6Jan 15, 2010 5:43 pm Firstly, I am not a lawyer, and this in not legal advice. My general argument is that the delay must be "reasonable" (Clause 9.1) and that the reasons specified must acually result in the duration of delay claimed. The builder is entitled to claim an extension for an Act of God, but this is not sufficnt to claim for a Act of God that did not result in a delay to the building work (for example an earthquake in Indonesia has no bearing on my building contract). As I read it, clause 9.1 sets out a non-exclusive list of reasons for claiming a delay, but requires the extension of time to be "reasonable". I consider it unreasonable to claim an extension of time for days actually worked. I would also challenge those who received a form letter based 5 (or 3) week extension (under a similar contract) and feel ripped off, to dispute the notice on the grounds that the extent of a reasonable delay is not yet known (9.2 (b)), as the extension of time should be at least limited by the date in which the trades return, and that an extension of time notice can be reissued at that date (after the fact - not pre-emptive worst case). I was also looking at the dispute resolution procedures of our contract. If agreement is made, then both parties must sign a written document outlining the resolution. However, I read this to say that if both parties do not reach agreement, than the issue remains open and the owner can take it to the tribunal or other forum at a later date (ie if the build goes over the original date + reasonable extension of time). Just letting you know we have already issued the builder with our notice of dispute, and shall keep you informed of any outcomes. Re: Help! Builder wants to claim the 5 weeks industry shutdown! 7Jan 15, 2010 5:50 pm Casa2 Does your contract state 5 week Christmas shutdown? Mine states 3 weeks. This is an important point. If they worked right through the shutdown then this is also an important point. Thanks for the post. It feels like there are no others who have received this extension of time. The contract is set out above, but the builders only stopped between xmas and new years. Thanks again. Re: Help! Builder wants to claim the 5 weeks industry shutdown! 8Jan 15, 2010 5:55 pm kek Whether or not some trades work during the period is irrelevant in most cases. What does your contract say about claims for delays - it's usually pretty specific about what's included. There can be some rubbery clauses though. If you're concerned, get some legal advice on your contract wording. Thanks you for your post. We feel a bit alone in the issue. At this time, I am concerned enough to dispute the notice and make the builder work for any extension of time thay get. I wont be getting a lawyer involved just yet - plenty of time for that. I feel that under the HIA contract (above) that working over the period fails the "reasonable extension of time test". But we will see. The contracts are already fat, and I dont want to give the builder any more room to slack off. Re: Help! Builder wants to claim the 5 weeks industry shutdown! 9Jan 15, 2010 6:07 pm Hi JD! No, you're not alone! We just got ours in the mail claiming 5 weeks! what cheek! its not even 5 weeks after Xmas yet! Would be interested [if you're willing to share] in seeing your dispute letter and I might 'borrow' it to send to our builder.... Never argue with an idiot they drag you down to their level & then beat you with experience - Dilbert View Thread: viewtopic.php?f=31&t=19733 Contract signed 14Sept Slab 30Sept Bricks laid 1Dec Lock up 26Feb Keys 10Jun Re: Help! Builder wants to claim the 5 weeks industry shutdown! 10Jan 15, 2010 6:45 pm We got one too..from xmas eve and had 15 working days not including weekends and public holidays. Our painters have been there painting every day expectp the weekends and public holidays. Our build seems to be ahead atm, so we're sitting on it and will dispute it if we run behind. Built Liberty 42 - Handover 26th Feb 2010 forum thread: https://forum.homeone.com.au/viewtopic.php?f=31&t=17243 Re: Help! Builder wants to claim the 5 weeks industry shutdown! 11Jan 15, 2010 7:03 pm Wow. . . are there penalties if the builder over-runs? We've got a standard HIA contract too. Our house is supposed to be finished by the end of Feb, but I doubt it will be. At this point though, I'd rather have a quality house that is finished a little over schedule than a house with problems that is finished on time. If you think your house will be built on time (like the other poster), then this problem won't be a problem. . . is there a way you can gather your evidence and only use it if the builder actually goes over? Re: Help! Builder wants to claim the 5 weeks industry shutdown! 12Jan 15, 2010 7:11 pm Nightshade We got one too..from xmas eve and had 15 working days not including weekends and public holidays. Our painters have been there painting every day expectp the weekends and public holidays. Our build seems to be ahead atm, so we're sitting on it and will dispute it if we run behind. Our contract has a 5 day window for disputing an extension. Be careful on the waiting option. Interested in what contract are you on? Good luck. Re: Help! Builder wants to claim the 5 weeks industry shutdown! 13Jan 15, 2010 7:12 pm jodge Wow. . . are there penalties if the builder over-runs? We've got a standard HIA contract too. Our house is supposed to be finished by the end of Feb, but I doubt it will be. At this point though, I'd rather have a quality house that is finished a little over schedule than a house with problems that is finished on time. If you think your house will be built on time (like the other poster), then this problem won't be a problem. . . is there a way you can gather your evidence and only use it if the builder actually goes over? Hiya Jodge, I agree in theory but from what I've now read in our contract we have 5 working days to dispute it (the 5 weeks) we can't dispute it retrospectively, so if they do go over (some people's horror builds have gone months over) and we're entitled to liquidated damages (at a whopping $250/wk) it will at least ease the sting of the ongoing cost of renting... so we'd rather dispute it now than be unhappy later on that we didn't dispute it... Never argue with an idiot they drag you down to their level & then beat you with experience - Dilbert View Thread: viewtopic.php?f=31&t=19733 Contract signed 14Sept Slab 30Sept Bricks laid 1Dec Lock up 26Feb Keys 10Jun Re: Help! Builder wants to claim the 5 weeks industry shutdown! 14Jan 15, 2010 9:25 pm This happened with our builder. We went to VCAT for the builder going over time and this go discussed. He got a big telling off for it as it was not signed as part of the contract, so does not have to be accepted. My advice, do not include this delay, the clock is still ticking. Christmas is not unforeseen and happens EVERY year so the builder needs to factor it it. Anthea Re: Help! Builder wants to claim the 5 weeks industry shutdown! 15Jan 15, 2010 10:38 pm MrsRose jodge Wow. . . are there penalties if the builder over-runs? We've got a standard HIA contract too. Our house is supposed to be finished by the end of Feb, but I doubt it will be. At this point though, I'd rather have a quality house that is finished a little over schedule than a house with problems that is finished on time. If you think your house will be built on time (like the other poster), then this problem won't be a problem. . . is there a way you can gather your evidence and only use it if the builder actually goes over? Hiya Jodge, I agree in theory but from what I've now read in our contract we have 5 working days to dispute it (the 5 weeks) we can't dispute it retrospectively, so if they do go over (some people's horror builds have gone months over) and we're entitled to liquidated damages (at a whopping $250/wk) it will at least ease the sting of the ongoing cost of renting... so we'd rather dispute it now than be unhappy later on that we didn't dispute it... Ohhh. . . I see! I suppose that everybody's situation is different. I've seen some people on the forum whose build has gone over by over 6 months with stacks of problems, I suppose in the situation you'd be severely unhappy and want recompensing for your months of extra costs, but in our situation, we'll probably only run over by a week or two anyway, if at all, and we've been happy with everything so far. How's the journey been so far with you? Have you had many problems? Re: Help! Builder wants to claim the 5 weeks industry shutdown! 16Jan 16, 2010 11:04 am jodge Ohhh. . . I see! I suppose that everybody's situation is different. I've seen some people on the forum whose build has gone over by over 6 months with stacks of problems, I suppose in the situation you'd be severely unhappy and want recompensing for your months of extra costs, but in our situation, we'll probably only run over by a week or two anyway, if at all, and we've been happy with everything so far. How's the journey been so far with you? Have you had many problems? We have had a few issues, which the builder is slowly coming to terms with. And this is why I think they will want the 5 extra weeks. But hey, do the job right the first time and there are no problems. Yes everyone is diferent, and there may be time limits for disputing the Notice for an extension of time. So check your contract. If you dont think the delay is reasonable, or if the delay estimate is preemptive - you can dispute it. This at least keeps options open. If there is a time limit set in the contact for a dispute, and you dont dispute it, then you are only strengthening the builders position. It is my opinion that a builder should know about the xmas delay and add this into the contract, at worst they should only be able to claim the time not actually worked (or the time the trades are on holidays - not workng on your build is a scheduling matter not part of a shutdown). Will let you know of the outcome of our dispute. MrsRose - I have sent you a PM. Re: Help! Builder wants to claim the 5 weeks industry shutdown! 17Jan 19, 2010 5:11 pm Hi John Doe! Yeah, I think we've been relatively lucky, nothing shockingly wrong has happened so far, we've had a few delays due to miscommunications, but on the whole we're pretty happy with the build so far. Our builder included the Christmas shutdown as part of his overall contract time too. You go John Doe. . . get that builder to take back his extra 5 weeks! Re: Help! Builder wants to claim the 5 weeks industry shutdown! 18Jan 19, 2010 7:02 pm No way would I agree with that. Builder's are aware of the christmas shutdown periods and should allow them in their time for the build. Extension of time claims are for delays beyond the builder's control, such as inclement weather, client delays, etc. The builder is aware of the break and should have factored that into their original program. The builder working through the break is not a factor in this dispute (although I would point out as you said that they worked anyway so how is there a delay). You can only claim an extension if it delays you. If it rains, but all the external work has been completed and only internal work remains, then in theory the builder cannot claim a delay as it has not stopped work on site. Claiming the shutdown period as an extension of time claim is like claiming a Sunday as they couldn't work because it rained. They don't allow Sundays to work (not a working day), therefore no time extension is warranted -same as the shutdown period. Blog is now up - http://www.jbdave.blogspot.com/ Re: Help! Builder wants to claim the 5 weeks industry shutdown! 19Jan 19, 2010 10:07 pm I agree that the builder shouldn't be claiming the Christmas period as a delay. I thought that the 'industry shutdown' over Christmas only relates to when suppliers or subcontractors are unavailable over that 5 week time period which is out of the builder's control. Delays should only be applicable if circumstances occur that are out of the builder's control that cause a delay in the critical path of the building process. Re: Help! Builder wants to claim the 5 weeks industry shutdown! 20Jan 19, 2010 10:15 pm I just did a search on the internet for HIA & Industry Shutdown. I don't want to post any links or copy and paste any information in case it is not appropriate to do so. I found a couple of HIA newsletters which explains to members about the correct way of claiming delay time for industry shutdown and it *may* help explain where the builder's thought process is coming from by claiming the delay. Hi there, long-time lurker but first time posting. I've bought a house 2 and a bit years ago and last year we had some major water damage on a converted pergola area… 0 7936 I apologise for any confusion, but your understanding is correct. We approached our situation differently based on advice from… 11 53226 1 9476 |