The judge said: “He seemed to me to be an old-fashioned builder who found the defendant – as a professional, assertive woman – rather difficult to deal with when things were not going well and, as a consequence, tended to avoid doing so.”
The use of the word ‘old fashioned’ doesn’t mean that the builder was old - far from it – it’s typically young builders that find the art of communication with a stroppy client difficult.
But, it always seems fashionable for the builder to blame someone else when things go wrong – likely due to developing a keen sense of opportunism and becoming adept at finding a subcontractor as a likely culprit and refusing to pay them.
The end game being that the builder does not get paid his full dues but he reduces his chances of being out of pocket by blaming other trades and by holding the purse strings.
It’s an ordinary everyday story, which I have seen repeated time and time again. Given the complexity and risks of many of the different parts of the building site, contractors often know this story too well.
Sadly, on-site or off-site we then have multiple trades, who have been accused of being at fault by the builder, pointing the finger at each other, usually without much science behind their accusations.
What’s missing is any sort of cohesive common strategy to find out what went wrong and why, and to work out the most cost-effective solution, whether that’s doing a repair – that’s usually the solution – or limiting the amount of any claim.
So let’s work through an example of a common scenario:
A flooring supplier supplies engineered oak flooring. The builder installs the flooring. A flooring contractor sands and coats the flooring. Some months later the owner notices split boards and delamination. He goes berserk and starts threatening to bring in lawyers. The builder panics and blames the supplier and the flooring contractor. The owner understandably buys into that and we then have a conflict between the flooring supplier and the flooring contractor, whilst the owner and builder look on smugly and wait for matters to ‘be put right’ to their satisfaction.
The first thing to do is ignore the threats of being sued and any wildly exaggerated claims by the builder and the owner. Facts come first. Instead of responding and blaming someone else, act quickly and come back with questions and science.
Good technical articles are abundant online from various bodies and they will stir your creative juices in formulating your thoughts, but here are some examples in this particular case i.e. was the flooring compromised by:
- underfloor heating systems and inappropriate use of them?
- is the glazing allowing too much direct sunlight and therefore heat onto the flooring? If so, do sheltered areas of the timber flooring such as hallways have any signs of damage?
- is the house being locked up for long periods without sufficient ventilation?
- what happened around the installation of the flooring? There are a number of issues that could have arisen here.
The best thing you can do is work the phone with the builder and the supplier and learn as much as you can. But, importantly get them away from being angry or wanting things ‘sorted now’ and bring them into the strategy of how to deal with the owner. Don’t be shy, as my experience is that most builders don’t have a deep understanding of the challenges of their sub-trades.
If the cause of the problem is not obvious or there is continuing disagreement bring in an inspector from your area of work. If necessary, offer to pay for that, but only on the basis that payment is not an admission of liability.
Another point to consider is remediation costs and accommodation costs. Builders and owners can be too quick to drum up inflated numbers thinking (foolishly) that this will force the contractor to rush to find a solution and magic away the problem. The owner, not being aware of what repairs should really cost, will suddenly be anchored to a way of thinking and a solution that will force them to panic and rush off to lawyers.
The better way is to talk the builder into agreeing to the scope of any repair first and then pricing it. If the cost of repair is manageable then - and only then - discuss who contributes what. If it turns out that that the cost of repair is not manageable then it’s time for the tough discussions and where you will likely need legal advice.
In the interim:
- don’t let emotions dictate the result, focus on the facts and be resolution focused;
- be clear that frustrations and intimidation should not define the discussion because that will only serve to drive people to their respective corners;
- start every discussion or email on that basis that it is a ‘without prejudice’ discussion so that everyone involved can talk freely without fear of whatever they are discussing or exploring will be used against them in any formal dispute process; and
- talk to your lawyer about checking over the emails that you intend to send, and your approach, so they can fine-tune the strategy and give you comfort that you are doing the right things.
As always, it’s the cool hand Luke that people will listen to.
If this article has raised questions for you, make contact with Finn Collins for some advice: finn.collins@gibsonsheat.com or 04 916 6428.
Disclaimer: The information contained here is of a general nature and should be used as a guide only. Any reference to law is to New Zealand law and legislation. We recommend before acting on it, you consult your accountant or tax adviser
