Browse Forums Building A New House 1 Jul 13, 2011 1:07 am Hi there, just wondering whether anyone may be able to provide advice in regards to the following. We are finally at handover point with our builder and get to do it tomorrow (yay!), handover was due on 5th December 2010. (exactly 220 days late) and as I am on a Victorian HIA New Homes Contract, I am entitled to $250 per week of liquidated damages. My builder however is disputing this and saying that it is only 188 days as they have a Christmas clause of 30 days. I had already endured the Christmas clause over the 2009 year. I said that this shouldnt matter because I recieved no variation notice, and regardless it is after the handover due date. I rang HIA who went through the contract with me. My contract reads the following: TIME FOR COMPLETION (BUILDING PERIOD) 365 Days including the following estimates for delays: Inclement weather 20 days Weekends/Public Hols/RDO's and other foreseeable breaks in the continuity of work 50 days. Other days that are reasonable having regard to the nature of the building work N/A HIA agreed no Christmas Clause was in its contract, and having read through it again, I can certainly not find anything. The thing is, now I am wondering as to whether I can claim back the 2009 Christmas Clause considering the contract does not mention it. The only real mention of it on any document is on my Notice of Commencement which has the following info: Date commenced September 24th 2009 Building works to be completed October 23rd 2010 based upon the time period stated in Schedule 1 of the contract dated 19.06.2009 and also has "365 days plus Christmas clause" handwritten above these dates. I was not asked to sign or return any part of this document. Anybody have any ideas or past experience in regards to this? My idea is to now tell them that I want to be paid 250 days of liquidated damages as I have not signed any Christmas Clause variation and that if they dont agree I am happy to take it to VCAT. I would truly appreciate any info/past experiences shared. Sorry for the novel!!! Re: Christmas Clause....need some help....feeling ripped off 2Jul 13, 2011 1:12 am I aggree with you, another angle you could take with them is with regards to the other Xmas you endured with them that you will be happy to meet them in the middle and not charge them for one, however they have to reimburse one Building our own custom design with Redink Pre-start - 28/06/2011 Building license approval - sept 2011 Footings - 8/10/2011 my thread - viewtopic.php?f=31&t=48921 Re: Christmas Clause....need some help....feeling ripped off 3Jul 13, 2011 1:13 am Ps, congrats on your handover, obviously been a long time comming!!!! Building our own custom design with Redink Pre-start - 28/06/2011 Building license approval - sept 2011 Footings - 8/10/2011 my thread - viewtopic.php?f=31&t=48921 Re: Christmas Clause....need some help....feeling ripped off 4Jul 13, 2011 8:39 am Whoever you spoke to from the HIA is 100% wrong there - of course they have holiday close-down period which constitutes one of the "reasonable delays" they can factor into the build time and it's even listed on their website: http://hia.com.au/hia/content/Builder/r ... racts.aspx They shouldn't be claiming that as an extra though - it should be included in the 50 days mentioned on the contract (which to be honest is a bit on the conservative side for a 365 day contract as it barely covers the xmas break and RDO's). The issue for you is whether the fact that your build has been extended so far (past a second holiday break) means that the builder is liable for damages over that second holiday break. I suspect they have claimed for an additional 30 days delay due to the additional builders holiday close down period at the end of 2010, which to be honest might be a reasonable thing for them to do (as much as it is distasteful at you end) because they cannot force tradies to work during the shutdown period and thus it may fall under the the "any thing else which is not the fault of the builder and which causes the building works to be delayed" clause WRT to the builder seeking extensions of time. You certainly don't have a leg to stand on WRT claiming liquidated damages for the 2009 xmas break, because that IS part of the standard HIA contractual arrangement and is included in the provisional number for holidays and breaks in work (I'm assuming that they have claimed quite a few additional days due to inclement weather as well). I'd recommend reading through that website page I posted a link to above and if they haven't fulfilled their obligations (including the timely issuing of EOT notices) then have a chat with your solicitor. Some people apparently have nothing better to do than comment on other people's sigs. Perhaps widen the hole a bit more and insert a nice piece of timber and make it an in counter knife block?? 2 1679 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 28691 Hi VK, I am now retired however I have stood beside over 300 owner builders in the past 18 years that have successfully built their own homes. First of all a building… 10 22562 |