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I did a stone bench top project for a building company in…

I did a stone...

I did a stone bench top project for a building company in Mildura. It was for the house of the owner himself of building company and they paid only 50 percent deposit of whole works and when the job is complete they are making excuses for not paying balance amount. I understand small business commissioner don’t have real power to enforce the decision on any party. The amount owing is around $10000 and I have already spent 2000 so far in legal fees to lawyer. He is saying filing complaints in VCAT will cost another 3000 and then the jurisdiction will be Mildura not Melbourne even though my business is based in Melbourne. What is the cheapest option for me to proceed.

Lawyer's Assistant: What state/territory are you in? It matters because laws vary by location.

My business is based in Melbourne Victoria and the job was done in Mildura Victoria about*****from melbourne

Lawyer's Assistant: What steps have you taken so far?

I have sent them lawyers notices and my lawyers asked them to produce a proof of payment to other party to rectify the work according to their claim which they have failed to produce

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I’m not sure at this stage as as I’m not able to spend big amounts to recover even Partial amount as clearly they don’t have any intentions to pay

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Answered in 5 minutes by:
3/15/2018
Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 46,722
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
Verified

Hi, I am Leon, a NSW Solicitor. I am reviewing your question and will reply again in a moment.

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Good Evening

What has he done for $2,000.00?

What does the agreement you have with them say about payment and your rights?

Does it have a lien in your favour over the goods?

Are they alleging the work is not good and needs to be repaired?

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Customer reply replied 4 months ago
My lawyer has so far prepared and issued demand notice and had few correspondences with them to recover the money. Yes the party is saying work was not done properly and according to their template and so they had to spend money for rectification. Upon asking for proof of payment to other stonemason they did not send such document as asked by my lawyer such as tax invoice or payment receipt from othe stonemason mentioning the job address and details of rectification carried out. They have been making excuse after another and hoping we will just get frustrated and drop the matter without asking balance payment. My lawyer even offered to settle in less amount.

Good Evening

Were you given the opportunity to rectify?

Have they rectified the work?

Do you know who the other stonemason was?

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Customer reply replied 4 months ago
I m willing to pay 82 dollar but before that just concern about the fact that I m based in Victoria and you are in NSW

The laws are similar in each state.

The processes are the same.

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Good Evening

I would be suggesting that you protect your costs and put them in a position that they should be concerned if they lose they will have to pay on an indemnity basis.

As VCAT is generally a non cost jurisdiction and each party has to pay their own costs there are exceptions.

Section 109 allows them to order costs.

Here is the section

http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/vcaata1998428/s109.html

As you have mentioned you are prepared and you have made an offer to settle for less I would consider making it on a Calderbank Basis.

This means that you are putting them on notice that if they lose and you are awarded what you offered or more you will be seeking they pay your legal costs on an indemnity basis.

This is usually done during the court case not before but you have a situation where they are refusing to provide information and you may need orders for them to produce and to get that you have to start.

The following link is detailed on how to use calderbank offers in VCAT

https://www.minterellison.com/articles/obtaining-cost-awards-in-vcat-on-both-a-partyparty-basis-and-an-indemnity-basis

This is the best way to protect your costs and proceed,

Talk to your lawyer about this.

I would also suggest that you set out the case in the letter and also what they have failed to do to settle.
Mediation is also an option but it will be a matter where if it does not settle money is thrown away.

You have to work on getting this in court and moving forward and protect your costs.

As I said Calderbank offers are used during the court process but they can be used before.

If you wish to have a phone call to discuss this in more detail please elect a call or I can send you a request.

I hope this makes sense and is of assistance. If you have found my answer to be helpful, please rate me five stars so I can get paid for my services to you. You rating my work 5 stars allows me to continue to provide a service to those who require it.

I am happy for you to ask further questions on anything you wish more detail on.

Let me know if I have answered your question today.

Regards

Leon

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Customer reply replied 4 months ago
Thanks Leon,This information was helpful. My lawyer already put them on notice on cost basis. I am thinking of lodging the case with VCAT myself so I save lawyers cost. Do you know how much it costs if I lodge it myself?

Good Morning

You can lodge with VCAT on your own.

You only pay the filing fee

Here are the list of fees from VCAT

https://www.vcat.vic.gov.au/resources/goods-and-services-fees

If you are a company your filing fee for claims under $15K is $298.00

For the hearing if it gets to that stage there is no fee.

I hope this answers your last question.

If there is anything else please do not hesitate to ask.

The only other costs is your time to prepare the application.

You can have your solicitor assist and they should only charge for their time to check.

If there is nothing further please do not forget to rate my work 5 stars so I can be paid for my work and continue providing the service.

Regards

Leon

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Customer reply replied 4 months ago
Thanks for your answer. If I myself file case in VCAT will that has to be in Mildura where the job was done or in Melbourne where my business is based?

Good Morning

You would start where the contract was entered.

If you start in Melbourne, the other side can request it be moved to Mildura if the contract was entered there.

The court will then decide if they agree with the applicant.

I hope this makes sense.

Regards

Leon

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Customer reply replied 4 months ago
The job site and the client is in Mildura but our business is in Melbourne and manufacturing was done in Melbourne but goods were supplied on site and installed in Mildura. Does that mean legally the jurisdiction is Mildura?

Good Morning

If the contract was signed in Mildura then it is the correct jurisdiction.

Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 46,722
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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