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Leon, Solicitor
Category: Australia Law
Satisfied Customers: 44663
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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I am opening a shop shortly and have a shopfit company

Customer Question

Hi, I am opening a shop shortly and have a shopfit company currently fitting out the shop. There have been lots of delays and drama with myself and my his dam having to step in to help, due to delay in handover. They are now demanding the remaining 20% of the contract to be paid before they will hand over keys, even though the job is incomplete (as contract says 20% payment upon job completion) my question is, because it is my shop and I pay the lease and I have paid 80% of the quote so far (progress Payment) am I allowed to organise a locksmith to change the locks to the shop, so I can gain access and open the store? They know I am going to dispute their bill due to all the delays, hence don't want to give me the key.
Submitted: 2 years ago.
Category: Australia Law
Customer: replied 2 years ago.
'His dam' should be husband. He has had to step in and work for the joiner and shopfitters very early in the morning and extremely late at night in order to push this job through, meanwhile losing money, as he is a sub contractor and doesn't get paid if he doesn't work. We were supposed to open my store before mothers day. I began paying rent on March 31st and still not open!
Expert:  Leon replied 2 years ago.
Good Morning,My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.What doe site agreement/contract you have signed with them say about handover?You can organise a locksmith and take possession but if it is not complete will council allow you to operate?What does the contract says bout delays?
Customer: replied 2 years ago.
Hi Leon, I have attached the contract for you. The shopfit is 90% complete, we are still waiting on items, that, even though we dont have them, wont stop us from opening. SAS have already signed the Occupancy Certificates and forwarded to council and landlord, so thats all approved.
Customer: replied 2 years ago.
PS - I dont think there is anything specified regarding handover in the contract? My understanding of handover is when job is complete and we are given keys, then we pay?
Expert:  Leon replied 2 years ago.
Good Morning. It is clear that 20% has to be handed over on completion. If he has not completed then you do not have to hand it over and I note he has a registrable interest under the PPSA which is like a mortgage over the works. If the work is not completed then you can refuse to pay him. I also nopt there is no timeframe on when the work will be completed. Was there any other document?
Customer: replied 2 years ago.
No, this is the only signed document with them? What do you mean by mortgage? And do you mean if they are not complete, then they don't have to hand over keys? My problem here is, that the onsite Project Manager promised us yesterday that we would have the keys last night, so said we could move all our stock in, so yesterday I put in $90,000 worth of stock into the store, but then he changed his mind and refused to hand over the keys until I paid the last payment. So now, my stock is in the store and I don't have keys to access it.
Customer: replied 2 years ago.
Ps- and no timeframe was listed in the document, however they did send us a schedule of works and completion date was supposed to be the 10th June, so way past when they said it would be finished. I signed up with them on the 23rd March, so they've had nearly 14 weeks to complete the store (normally takes 5-6 weeks)
Expert:  Leon replied 2 years ago.
Good Morning,If you see clause 13 under the terms and conditions it is headed PPSAThey have registered the work done to the company or business you own and if you go to sell it, it will show a debt. Similar to a mortgage. They cannot refuse to hand over the keys but they can sue you for a breach of the agreement. if they say it is completed they can sue for the 20%. If they have failed to complete in accordance with that schedule then they are in breach unless any delay falls under 6(d) of the agreement. There is also no penalty clause for their delay only for you not paying. If they have completed the work you have to pay them. You cannot avoid it.
Customer: replied 2 years ago.
So, I cannot change the lock then? I was hoping to have control of the premises, but still allow them access to complete the job. i am really worried about all the stock I currently have sitting in there.
Customer: replied 2 years ago.
PS - It is my tenancy, so I am the lessee of the premises.
Customer: replied 2 years ago.
Also, it says int the contract that I have 30 days to pay each invoice. Does this mean even when they complete the job, I stil have 30 days to pay? As they are requesting payment before handover occurs.
Expert:  Leon replied 2 years ago.
Good Morning, The premises is yours and you can access it by changing the locks. There is nothing in the agreement that you give them possession. But he has the right to go change the locks and take possession You have 30 days from the date they issue the invoice to pay it tr they can charge you interest. I hope this makes sense?
Expert:  Leon replied 2 years ago.
Good MorningI hope all is well and that you have been able to take possession of your property. If there is nothing further thank you for using my services. If I have missed anything, or you have any further questions please let me know If there is anything else in the future please do not hesitate to ask. Please do not forget to leave positive feedback. RegardsLeon