KDR in Sydney - Sekisui Luzia 2

The_Joneses · May 02, 2017 4:42 pm

I also looked more closely at the contract start period and the delay days they have claimed. They said our build started on August 31st, but have claimed four days in August (25 rain, 26-29 wet site). I asked our CSO whether those days should be claimed as delays if they are before the contract building period, and her response was "yes, they do count, because the supervisor tried to start the build on those days, but it was raining so he couldn't"......... Wow.........Really.......... I don't understand how she can't see the problem here..........

clintdb · May 02, 2017 5:10 pm

The_Joneses, that is actually quite a plausible explanation. If they planned to be on site, but couldn't due to weather then that is a reason for a delay. The only issue is whether they actually were planning to be on site on that day or not - which, unless you have some record of conversations or emails etc to the contrary, you unfortunately won't really be in a position to argue.

As a separate issue, the day they start on site is not necessarily the day the start of the contractual terms actually begins.

From the time you have provided all necessary documentation to them (contract, evidence of finance/loan, proof of ownership etc etc) they have 20 days in which to commence on site, and if they don't then the time starts from the end of the 20 day period regardless.

Assuming you were within the 20 day period, it actually doesn't matter if they claim delays or not as they could either start on the 25th and then have delays to the 31st, or they just start on the 31st - either way you end up with 180 days (or 200 or whatever yours is) from the 31st.

trimum · May 02, 2017 7:21 pm

clintdb

The_Joneses, that is actually quite a plausible explanation. If they planned to be on site, but couldn't due to weather then that is a reason for a delay. The only issue is whether they actually were planning to be on site on that day or not - which, unless you have some record of conversations or emails etc to the contrary, you unfortunately won't really be in a position to argue.

As a separate issue, the day they start on site is not necessarily the day the start of the contractual terms actually begins.

From the time you have provided all necessary documentation to them (contract, evidence of finance/loan, proof of ownership etc etc) they have 20 days in which to commence on site, and if they don't then the time starts from the end of the 20 day period regardless.

Assuming you were within the 20 day period, it actually doesn't matter if they claim delays or not as they could either start on the 25th and then have delays to the 31st, or they just start on the 31st - either way you end up with 180 days (or 200 or whatever yours is) from the 31st.

Thank you for this!! I have been arguing just this point. Our 20 days were up on Friday 16th December but they are claiming that 16th Jan is our start date. I have been arguing that it doesn't matter when they physically started, the build date should have been from Monday 18th Dec, taking into account 3 weeks Xmas break they have added a week on to our build time for no reason.

Our Acacia build - http://forum.homeone.com.au/viewtopic.php?t=86619

clintdb · May 02, 2017 7:32 pm

Trimum - they tried to pull the same one on me (and another H1 member too). They claim that some internal document (the Authority to Commence Construction - ACC - or something) is the trigger that starts the clock counting.

I pointed out to them that there is nothing about that in the Contract. As long as you have done everything from your end and in the case of demolition, you have notified them and provided the "clean site" report etc, then the clock starts counting. If they want to muck around internally, that's there concern. It's not yours, and more importantly, it's not in the Contract.

With your specific case Trimum, you do have the "Christmas closedown" period to complicate matters. I have seen various version of how this is described in Contracts, so it really depends on what yours says. But you could have 3+ weeks where they are entitled to a "delay" because of this, so that could be the reason for them not starting the counting of days until 16th Jan.
Although, to be true to the contract, what they SHOULD do is to confirm the start date (based on the end of the 20 day period which you say is 16th Dec) and then submit for a delay that is allowed under the Contract which then extends the end date (it doesn't move the start date forwards at all, just adds to the days they have to complete the build).
It's a technicality, but could be an important one depending on how things go with the build.

trimum · May 02, 2017 7:34 pm

Thanks so much!! That's really useful and I appreciate that.

Our Acacia build - http://forum.homeone.com.au/viewtopic.php?t=86619

ehhc · May 02, 2017 7:54 pm

I also want to ask for our start date but don't want be cookin over the response...

Our 20days was up on Dec 2nd. fence installed 22nd dec but site wasnt leveled until 20th Feb!!

clintdb · May 02, 2017 7:58 pm

Hi ehhc, similar answer that I have given above. You don't have to wait to be "given" the start date. You should be able to calculate it based on when you fulfilled the conditions of your contract and adding 20 (working) days to that. If they try to tell you it is different to what you think, ask them why and then post the answer on your thread for the rest of us to pick over

ehhc · May 02, 2017 8:09 pm

I'm worried the builders may be right... we seem to have a black hole in our contract. Must start within 20 days but build period commencement is defined as when the building works begin

clintdb · May 02, 2017 8:30 pm

Ok, yours might differ, but here's mine - see if you can find similar things in yours.

Clause 8.
8.1 The builder is to commence within 20 days of:
a) the builder receiving all planning permits/approvals which allow the works to commence
b) The owner satisfies all requirements in Clause 4 (Essential Matters - things like demo of old house, providing proof of finance etc etc - have a read. Replaced in mine with Special Conditions Clause 45 - same stuff).
8.2 The contract period commences when the builder is obliged to start (that is, if he doesn't start, the days start counting anyway).

Feel free to post a picture of the relevant clause in your contract for the rest of us to have a look at!

ehhc · May 02, 2017 8:52 pm

Ok! I have a soft copy of signed contract on my kindle app, so I feel ready and armed when needed haha

Also replaced with special conditions but look at our point 2. Had no idea this section was different for different customers.

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clintdb · May 02, 2017 9:18 pm

I hate it when they do that. The sub clauses now contradict each other. On the one hand it says that the builder has to start within 20 days and on the other it effectively says "that doesn't matter - start whenever you start".
Contracts should never contradict. Sure, they can be heavy handed against one party or the other, but it should never be at odds with itself.
This is just poor.

It's almost like they have changed the standard form of contract themselves. Honestly - I don't know where to go to from here.
I would love to see what other people on H1 think of this, if you don't mind posting in a more general forum thread.

Thinking out loud, can you post the definitions from your contract of "building period" and "building works" (if they are defined)?
Just wondering if (for some reason) "building period" and "contract period" are defined differently. Or maybe if "building period is even defined at all? Really curious on this now.....

For what it's worth, the exact wording of my second sub-clause (8.2) is:
"The contract period commences on the date the builder is obliged to commence the building works under sub-clause 8.1."
There is also a side explanatory annotation put there by the standard form of contract which comments: "The builder may commence before the contract period commences".

ehhc · May 03, 2017 9:41 am

there is no definition for "contract period". and if it makes any difference, contract says it's based on the HIA March 2015 template

I don't like how the definition wording is being used to describe the definition itself. What if I didn't know the meaning of a word.
lol I just tried to make a sarcastic definition using the word i'm trying to define. Couldn't make it work.

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clintdb · May 03, 2017 10:30 am

Haha, good try on the wordplay ehhc :-)

Based on those definitions, essentially what your Clause 12 is saying is:
1) The physical "works" themselves are to commence within 20 days etc etc
2) The time taken for the works commences whenever the works start.

Whilst the builder could argue that the timing starts from whenever they start on site, Clause 12.1 says that they must start on site within the 20 day period. Therefore the purpose of Clause 12.2 seems to be to allow for the "building period" to start earlier if the works actually start on site before the 20 days are up.
In other words, the building period starts either at the end of the 20 days or the start of actual works, whichever is earlier.

It is extremely poorly written though - someone should really have a good look at this!

ehhc · May 03, 2017 12:48 pm

Because it's so unclear, I might have to just ask for the start date and go with it.

Thanks Clintdb,
Thanks: to give thanks to someone

clintdb · May 03, 2017 1:29 pm

And when I say "you're welcome", I mean that the message I have received from you is welcomed.

ehhc · May 03, 2017 1:49 pm

clintdb

And when I say "you're welcome", I mean that the message I have received from you is welcomed.

Haha classic

The_Joneses · May 03, 2017 9:25 pm

clintdb

The_Joneses, that is actually quite a plausible explanation. If they planned to be on site, but couldn't due to weather then that is a reason for a delay. The only issue is whether they actually were planning to be on site on that day or not - which, unless you have some record of conversations or emails etc to the contrary, you unfortunately won't really be in a position to argue.

As a separate issue, the day they start on site is not necessarily the day the start of the contractual terms actually begins.

From the time you have provided all necessary documentation to them (contract, evidence of finance/loan, proof of ownership etc etc) they have 20 days in which to commence on site, and if they don't then the time starts from the end of the 20 day period regardless.

Assuming you were within the 20 day period, it actually doesn't matter if they claim delays or not as they could either start on the 25th and then have delays to the 31st, or they just start on the 31st - either way you end up with 180 days (or 200 or whatever yours is) from the 31st.

How can they claim delay days before the contract period begins though? Surely if they tried to start on August 23rd, then that would be the beginning of the contract period? Then claiming the delay days would be fine.

The_Joneses · May 03, 2017 9:31 pm

Plasterboard was delivered today.... Yay 👏 😊!!!

shazaw · May 03, 2017 10:58 pm

So glad that you have plasterboard. :-D

Hopefully smooth run from now on.

Build Thread : viewtopic.php?=31&t=81624

ehhc · May 03, 2017 11:38 pm

Hey joneses, what was the date of the end of the 20days period?