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Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 863
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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Thanks time to answer my question. it is in regards to

Customer Question

Customer: Hi, and thanks for taking time to answer my question. it is in regards ***** ***** unpaid invoices for work done but not submitted for payment. the invoices are for work done as a contract floor coverer for a carpet shop.
JA: Thanks. Can you give me any more details about your issue?
Customer: the question is, how far back time wise can one go with presenting these invoices for payment . is South Australia law the same as other states. and if there is no contract note with the plan and therefore no contract number or date can the shop demand that date. thank you.
JA: OK got it. Last thing — JustAnswer charges a fee (generally around $18) to post your type of question to Australia Law Experts (you only pay if satisfied). There are a couple customers ahead of you. Are you willing to wait a bit?
Customer: yes.
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Submitted: 1 year ago.
Category: Australia Law
Expert:  James D. Ford replied 1 year ago.

Hi, what form of contract was used? written or verbal?

Does the invoice make any mention of a security of payments act?

BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT (SA) 2009

7—Application of Act

(1) Subject to this section, this Act applies to any construction contract, whether written or oral, or partly written and partly oral, and so applies even if the contract is expressed to be governed by the law of a jurisdiction other than South Australia.

What is the total amount you are seeking to recover?

When was the work completed?

Please clarify what you mean by "no contract note with the plan", and "therefore no contract number or date"?

Kind regards,

James

Customer: replied 1 year ago.
Hello James, it is for my son who works as a floor covering installer, he gets a floor plan with the area to be covered and usually there would be a copy of the invoice to the customer included with the paperwork which has a "contract number" the customers invoice number , so the customer gets their copy and the installer gets a copy and there is a "book copy " . the copy that goes with the floor plan then should have a date and the number to refer back to included, and this hasn't been happening. when the job is done he generates an invoice to get paid for each job that is done. the shop is refusing to pay on the invoices submitted to date as there is no reference number or date but it doesn't get supplied in the first place. . there is several thousand dollars involved as each job could be close to $1000.00 . now some of these job sheets have mounted up and there is a backlog of invoices now which have been submitted for payment to the office and they have handed them back to him demanding the contract number and date.which of course he never had in the first place.. the reason i'm taking this on is that i've been in business and know he should have that information handed to him with the goods he takes to the customers home so he has a reference of what is being installed and what he is expected to be able to charge back to the shop as work done and materials used for each job.
they are using just a basic invoice to the shop to claim the per metre rate , goods supplied and travel expenses as incurred on the job and as would have been included in the costs for the customer as their invoice total.
the "job contract" would be written in a book at the shop but no copy given with the floor plan as is customary, he receives just what is written on the floor plan . the customer's name and phone number. and sometimes not even a proper address.
there would be no mention of security of payment act , i'm sure.as there are no dates on the floor plans it is difficult to know exact dates the work was carried out.
but even as of a few months ago they are stalling on paying.he has made a request to the shop for the booking calendar so he can try to get some of these invoices paid.
there is quite a bit of money owed for the work done. and now that they are demanding dates we need to know the best way to handle this. I've spent some time with them and suggested that I follow it through to see where we stand legally, my son from a small town and the talk gets around so prefer not to use the local solicitor who is also the solicitor for the store owner.
Expert:  James D. Ford replied 1 year ago.

Hi, I recommend your son contact the retail customers who paid the carpet shop, ... and request a copy of their paperwork... then re-issue his invoices with the correct contract number details and dates.

Alternatively, he could request to see the master book, and find the details within this book.. which holds the master copy, and obtain the details for this..

On the invoices your son re-generates, he needs to add the following words, assuming no more than 6 months has past.. since the work was completed..

"This is a payment claim made pursuant to ....

BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 2009"

Kind regards,

James

=====================

BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 2009 - SECT 13

13—Payment claims

(1) A person referred to in section 8 who is or who claims to be entitled to a progress payment (the "claimant") may serve a payment claim on the person who, under the contract concerned, is or may be liable to make the payment.

(2) A payment claim—

(a) must identify the construction work (or related goods and services) to which the progress payment relates; and

(b) must indicate the amount of the progress payment that the claimant claims to be due (the "claimed amount"); and

(c) must state that it is made under this Act.

(3) The claimed amount may include an amount—

(a) that the respondent is liable to pay the claimant under section 28(3); or

(b) that is held under the construction contract by the respondent and that the claimant claims is due for release.

(4) A payment claim may be served only within—

(a) the period determined by or in accordance with the terms of the construction contract; or

(b) the period of 6 months after the construction work to which the claim relates was last carried out (or the related goods and services to which the claim relates were last supplied),

whichever is the later.

(5) A claimant cannot serve more than 1 payment claim in respect of each reference date under the construction contract.

(6) However, subsection (5) does not prevent the claimant from including in a payment claim an amount that has been the subject of a previous claim.

Expert:  James D. Ford replied 1 year ago.

I am not 100% sure whether the security of payment act applies... but on first impressions, it would appear that your son is completing "construction work", as it is defined by the Act (so it is worth a try).

Please let me know if you need further assistance, cheers, James

Expert:  James D. Ford replied 1 year ago.

I understand that the shop owner is not being co-operative, but you should at least attempt to get to the source documentation... as this appears to be the heart of the dispute... you need to determine if the shop are acting in good faith (and have just made a mistake), or are acting in bad faith, and have done this on purpose to avoid paying your son.

What I have proposed above is just the initial steps I recommend... you need to know that if you are forced to enforce your son's legal rights.. then he has a legal claim to be paid for the work he has completed.

The overall time limit for a claim for breach of Contract (even if it is verbal) is 6 years.

LIMITATION OF ACTIONS ACT 1936

LIMITATION OF ACTIONS ACT 1936 - SECT 35

35—Actions on simple contract and in tort

Kind regards,

James

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