can they charge me for that

[windbreaker]

Hi.
I am building an inground concrete pool. They dug the hole the day before it rained for 4 days. Everyone knew it would rain. Surprise, surprise the sides collapsed necessitating further excavation and then formwork for the outside walls.
My question. seeing as how they knew it would rain am I responsible for the variation and hence the extra which will come to about $3200. The contract is a standard pools and spas assn one it seems and says variations to the price are payable by the customer if it is outside the control of the builder. I'm maintaining it was within their control. This a legal point I know but maybe it's been done before and there is a precedent.
I am also disputing the price of the variation. OK the excavator was $600 and two blokes to form up the walls using used materials took one day and I am charges $180 per sq m. Good money if you can get it.
The contract also clearly states the cost of the variations can only cost the customer what it cost the builder. they can't add a bit on for themselves. I think they must have but I can't prove a thing. the obvious reason they dug the day before contracted rain was to get their next payment. They didn't care about the consequences. In fact they will get more out of it.
Sorry this is a bit long but that's what's happened.



Any advise appreciated. Even name of a good lawyer who knows about these things in sydney south west

[stevoh741]

I'd be holding payments at the other end until a deal gets worked out

[mike_perth]

Having just had a pool builder go broke on me mid build I may be slightly biased but I wouldnt pay that - it seems like a lot of money for a bobcat and 2 guys labour lets be crazy and assume $70 an hour - $1120 + $600 for Bobcat still only comes to $1720

Trust me pool builders seem to be exceptional at adding money on for themselves - a 100mm thicker wall to one side of my pool was quoted to cost me upwards of $4500 in actual fact when it came time to shoot the concrete a carton of beer to the forworkers and a few hundred for the concrete got it done.

In saying that the pool builder going broke ended up saving me $4300 on their original contract price - sure I had a few headaches and had to arrange my own contractors (Header Stone, Tiling, Plumbing and Plastering)

Mike

[Black Cat]

If everyone knew it would rain the following day - why did you authorise them to start work? You, too, have contributed to the problem... Perhaps you need to consider a compromise solution rather than a full-on argument?

[windbreaker]

Well that is true isn't it. But I'm not the pool builder with 20 years experience. It does seem silly to say but only when it began to rain did it occur to me. I certainly would have done something about it otherwise. One tends to trust in the builder to do the right thing and offer to delay. However we learn the hard way.

Turns out he's as bad as Ned Kelly but without a gun or mask.

There is a long list of other problems with this project management but mostly they started with this singular issue.

I do intend to negotiate with the owner whose reputation is at stake. The contractor is giving him a bad name. But I also think they're all in bed together.

Thanks for reading.

[plum]

Poor old Ned, being compared to a shonky pool builder.

[mugatu]

Here's a recent VCAT decision which talks through some of the same sort of stuff. http://www.austlii.edu.au/au/cases/vic/VCAT/2011/1827.html