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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 38261
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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A tradesperson has issued an invoice 2.5 years after job has

Resolved Question:

A tradesperson has issued an invoice 2.5 years after job has been completed for the first time.  He sent it 2 weeks ago and now has sent a reminder with threats to adjudication under the Security of Payments Act.


 


Brief history:


Job was done in Melbourne Australia.


He was assigned the task (was verbal agreement) of installing cement sheeting underlay to a new property.


He used the incorrect nails (longer than required) and pierced the water pipes within the floor joists as the nails penetrated the full width of the flooring, causing water damage to the level below.


We had a verbal agreement that he wont invoice for his work $847.00.


My repair costs exceeded his invoice fees which were roughly $1000.00


 


 


He is now wanting payment?? What are my rights?


 


Should I ignore this or answer, and if i answer him would i legally implicate myself to further fees?

Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.
Good Afternoon,

Thank you for your question. To Introduce myself I am a sydney based Solicitor and will do my best to provide you with relevant information to assist you.

Do you have evidence of the repairs that you had to do as a result of his negligence when doing his job?

Your rights are that you can claim against him for the repairs that were required as a result of his negligence.

You cannot ignore it. If you ignore what he has sent you, he will take the matter to the next step and then you will be in a position where you are finding him in court.

You need to respond and confirm the discussions between you and him and provide him with the evidence you have of his negligence and confirm that if he chooses to take this matter further you will cross claim against him for the full $1000.

Apart from the verbal agreements is there anything that you have in writing to confirm any of the discussions between you?

Customer: replied 1 year ago.

Hi.

I do have evidence of invoices that were issued to me by the relevant tradespersons required to fix his damage.

His apprentice (who performed the work, unsupervised) is also witness, although he is distantly related to me, so not sure if this counts.

 

After talking to the HIA (housing industry Australia) they advised that I should not respond as there is a clause (Sec14 -5) which states that he has 3 months to issue the invoice, however sec 14 -6,7 &8 of the payments Act , further confuse me. I am not sure if this is just a scare tactic from the contractor.

It is also worth noting that it is out of character of him to invoice 2.5 years later. Generally he would invoice me at times even before a job was complete, and pestered me until he was paid. This seems it is just a way of extracting money from me, thinking that we forgot our agreement.

 

Unfortunately i dont have anything in writing between us.

 

Additionally, as he is claiming payment under the securities of payment act 2002, do i need to respond with a payment schedule, even though the invoice was sent after the prescribed time which I believe is 3 months?

Expert:  Leon replied 1 year ago.
Good Afternoon

If he can give evidence that he was not appropriately supervised and there was damage is something.

Was this a progress payment? As the 3 months applies to progress payments

http://www.austlii.edu.au/au/legis/vic/consol_act/bacisopa2002606/s14.html


Customer: replied 1 year ago.

Hi,


 


Sorry, i dont understand the first sentence.


To clarify, the contractor (which i had a verbal agreement with to do the job) assigned his apprentice to do the work for him, although he did visit to check up on the apprentice.


 


It was not a progress payment, it was a one off full payment which section 14 -5 relates to i believe.

Expert:  Leon replied 1 year ago.
Good Evening

The first sentence applies to his apprentice that you said can give evidence.

14(5) also relates to progress payments It says

(a) the period determined by or in accordance with the terms of the construction contract; or (b) if no such period applies, within 3 months after the reference date referred to in section 9(2) that relates to that progress payment.
9(2) relates to progress payments. 

Even so. If he has missed the time to demand payment under the act, he can still sue as a debt under the
general law. 

You should respond and advise that the work was faulty and you are working out the costs of repairing it and
if you recall when you had the discussion with him set out the date you told him about the issue and the repairs. 

I hope this makes sense
Customer: replied 1 year ago.

Hi.


 


Excuse my ignorance, i still dont understand what you mean by the apprentice. Does the fact that he worked alone support my cross claim, is this what you mean?


 


The first part of section 5 states "A payment claim in respect of a progress payment that is a final, single or one-off payment may be served only within-". Does this help? I just want to be 100% sure, whether i need to respond under this Act in the form of a "Payment Schedule". Or is there anywhere else in the Act that has a cut off date regarding when an invoice (a single or one-off invoice) can be sent. I understand that I may have to pay under general law or the statute of limitation which is 6 years, just need the right direction so i am covered.


 


If I don't need to respond as such, then i can just write a general letter. I just want to legally do the right thing which would protect me from further claims against this person.


 


Futhermore, can i cross claim under the same Act or do i just need to send a seperate invoice.?

Expert:  Leon replied 1 year ago.
Good Evening

He worked alone without supervision and was the employee and agent of the tradesperson.

The apprentice I assume was told what to do by his boss (the tradesman) and it resulted in the damage. The tradesman is liable under the law of agency. If he knew that the apprentice was not experienced and did not know how to do the job he should not have sent him.

Read the rest of 5. It says as per the agreement or as per the progress payment under section 9(2). You have to read it all. This is why I do not believe it applies.

If he did not serve it under the act, he would have served it as an unpaid debt. He has 6 years to sue for the money under the general law.

He can reissue it and ignore the act.

You can respond with a general letter. Your protection is the cross claim.

Because you do not have anything in writing that he would forgo the payment because you had to repair the damage caused by his apprentice, it is now your word against his.

A verbal agreement is valid. But people always have different versions of what they recall. That is what it is difficult.

It is your word against his.

Does this make it clearer?

Customer: replied 1 year ago.

Hi.


 


So i guess the vital question is:


The fact that he served the invoice 2.5 years after the job was finished (Claiming it is under the Security of payments act 2002) , regardless whether there was an agreement or not to nullify the invoice due to damage, does this invoice fall within the Security of payments Act? Or is it outside of the Act, which would then mean that i would not need to fill in a "Payment Schedule" as a response to why payment has been witheld?


 


If this invoice falls under the Act, then i would have to respond in the form a 'Payment Schedule" as required by Law. I would rather not respond in this manner as it is a very tedious exercise. However if it is required, can i cross claim under the "payment schedule"?


 


Hope the above makes sense. Could you please clarify.


Thanks

Expert:  Leon replied 1 year ago.
Good Evening

Under section 9(2)(b) he is out of time under the act. He should have served it the day after the work finished.

http://www.austlii.edu.au/au/legis/vic/consol_act/bacisopa2002606/s9.html

If he wishes to sue he has to sue as a debt under the general law.

Under section 5 of the Limitations of Actions Act he has 6 years from the day the work finished.

http://www.austlii.edu.au/au/legis/vic/consol_act/loaa1958226/s5.html

I hope this is of assistance.

Customer: replied 1 year ago.

Hi.

 

Thanks for your assistance.(apologies for being pedantic!)

 

So to clarify, since he is out of time under the act, i am not required to respond by a form of a payment schedule, is this correct?

 

 

Or is a payment schedule mandatory either way, this is what i am unsure of?

And since he is out of time under the Securities of payment Act, does he have the right to adjudication against me (as he has threatened, or is this possible for invoices that only fall within the Act), or would he need to pursue payment via the limitations of actions act.

 

regards

 

Expert:  Leon replied 1 year ago.
Good Evening

No need to apologise. It is good to make sure you understand.

You do not have to respond in the form of a payment schedule.

He can take you to the standard courts yes.

I hope this is of assistance.


Customer: replied 1 year ago.

Thank you very much for your assistance in this matter.

Expert:  Leon replied 1 year ago.
Good evening

I hope this is of assistance. If I have missed anything, or you have any further questions please let me know before leaving any feedback.

If I have assisted please do not forget to leave me with positive feedback.

Leon, Solicitor
Category: Australia Law
Satisfied Customers: 38261
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
Leon and other Australia Law Specialists are ready to help you
Customer: replied 1 year ago.

Hi.


you may have overlooked my last question.


 


Since he is out of time under the Securities of payment Act, does he have the right to adjudication against me as per Sec 18 to 28 (as he has threatened, or is this possible for invoices that only fall within the Act),


 


 


Also Sec 9(2)(b) as you refered to "progress payments" and not payments in full or one off payments which is in my case. Is this still OK, am i exempt from him pursuing me via the securities of payment act you stated?


A am a bit confused here.

Expert:  Leon replied 1 year ago.
Good Evening

section 9(2)(b) is as follows:

subject to paragraphs (c) and (d), if the contract makes no express provision with respect to the matter, the date occurring 20 business days after the previous reference date or (in the case of the first reference date) the date occurring 20 business days after- (i) construction work was first carried out under the contract; or (ii) related goods and services were first supplied under the contract; or

It does not relate to progress payments.

You are exempt he is too late in issuing the invoice.

The payment claim is out of time and therefore section 18-28 do not apply.

They have to be in time to have 18 - 28 apply.

He can only sue you in the Magistrates Court as a general debt.

is that any clearer?
Customer: replied 1 year ago.

Ok I understand what you mean, the heading to Sec 9 states "rights to progress payments". this is where the confusion may be at my end as i thought the term "progress payments" did not apply to my case since the invoice was for a once off payment!


 



 


 


 

Expert:  Leon replied 1 year ago.
Good Evening

It is confusing.

As you read through the sections they refer to one off and final payments.

I hope this is all alot clearer.

Customer: replied 1 year ago.

Thank you.

Expert:  Leon replied 1 year ago.
Good evening

You are very welcome.

I hope this is of assistance. If I have missed anything, or you have any further questions please let me know before leaving any feedback.

If I have assisted please do not forget to leave me with positive feedback.


Leon, Solicitor
Category: Australia Law
Satisfied Customers: 38261
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
Leon and other Australia Law Specialists are ready to help you
Customer: replied 1 year ago.

Hi.


 


I have accidentally rated you twice, not realising that I will be charged twice, can the 2nd charge please be refunded.


 


Thanks

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