Case Studies
Here are some usual matters that Construct Commercial Lawyers help our clients with. Of course, all matters are different, so these case studies cannot be substitutes for speaking with a lawyer specifically about your situation and needs.
I’m Chris. I’m a builder and I’ve just completed my client’s home and we are about to do the final walk through and give him my final claim. The job has been going smooth enough, although we have been having ongoing disputes about the painting. But in the last week the client has been complaining about everything and he has even threatened to not pay me my final payment. What should I do? I feel like telling him to get lost and that we can fight it out at VCAT.
Chris. The contract sets out the method for completion, so you should endeavor to see out this process. Do the final walk through, make a list of defects, if there are any, attend to them within the time required under the contract and keep your client informed at all times. Its important that you are seen to be doing all that you can under the terms of the contract. By the way, it’s not unusual for owners to get nervous just as the works are being finished. There is the perception that once a builder is finished and been paid, he doesn’t want to know about the job. Maybe this is what your client is feeling? Keep communication channels open. I can get involved if you wish, but at this stage I suggest that it may inflame the situation.
If there has been an ongoing problem with the painting, ask yourself, and be honest, if the painting could be better. If the answer is yes, get an agreement from your painter to attend to any problem areas asap. It’s cheaper to do this than fight it out at VCAT, especially when you know that the painting could be better.
Once you have attended to the items in the defects list that you believe should be fixed, and the owner has still not paid the final claim, maybe that’s when I should get involved.
I’m Jane. I have finished working out the plans and specifications with the builder for my new home. He has handed a building contract to me. He said that it’s a standard building contract. I’ve read it and it seems fair, but I just want to check something. I want my ceiling height higher than normal. This means I have to get a special dispensation from the planning laws. I don’t want to build the house if the ceiling isn’t the height I want. Can I get out of my contract if I can’t get the special dispensation? Will I suffer a penalty if I end the contract early?
Jane, I’ve read your building contract and it does set out that there is a time limit to obtain the necessary building approvals. If you don’t achieve the building permit for the plans as agreed, you can pull out of the contract. You will however have to pay the builder his reasonable costs to date, such as for preparing the plans, plus a 25% margin. I would recommend that you include in the contract a special condition that if you do not get a building permit for the ceiling height you want, then you will pull out of the contract. You might also want the builder to tell you now what his costs would be plus the 25% margin.
I’m Angelina. I own a site and I am about to construct 4 factories. I am planning to lease them out. My agent has found three proposed tenants. So I would like to sign them up now, even though it will take approximately 10 months to build the factories. One of the tenants wants a first right to buy any of the factories if I later chose to sell one of them. Can you prepare the necessary documents for this?
Angelina, yes I can help help you with that. You can’t have a lease for a property until the building is built, but you can have an agreement with your proposed tenant now to lease the factory once its completed. One of the issues that you will need to address will need to be dealt with in both your contract with your builder and your agreement with your tenant. For example you will want to ensure that your builder will finish on time and if he doesn’t, that you are not put at risk of losing your proposed tenants if he runs late. On the other side of the equation, you want to keep your tenants happy but you also need to allow yourself some flexibility if the builder is late. I can prepare the necessary building contract and also an agreement with your proposed tenant to lease the factory on completion of the works. A clause can also be drafted into this document to provide a method for the tenant to have an opportunity to buy one of the factories, but with a time limit, so that you can sell it on the open market once that time limit expires.
We are Perry and Nick. We want to set up a website for people to compare scuba diving schools. We want people to make comments about the scuba diving schools that they have visited. What things do we have to look for, especially that we want to have members and we don’t want to be sued for defaming anyone. We also want to be able to receive a commission from the diving schools who get bookings through our website.
I can draft terms and conditions for your members which, amongst other things, sets out the basis on which they can make comments about the scuba diving schools. You will need to vet the comments yourselves but I can give you some guidance about what kind of comments are defamatory. I can draft an agreement for you with the diving schools about how you are to be paid the commissions.
We are John and Alex. We have just bought a house. What do we do now?
John, Alex, congratulations. You’ve done all the hard work in finding the house. Now just hand over the contract and let us take care of the rest.