A Retiring Couple's Home Building Horrors

Contents:

How the Owners had to terminate a failing Design-Build contract

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AND

How the Owners' act of compassion towards displaced builders sees
Builders Steal Off with Owners' Deposit Money

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THEN (while the house build was being progressed by the penultimate builders)

The Design-Build company attempted extortion of the retiree Owners:

The Design-Build contract contained excessively forward-loaded progress payments;
flaws in the Construction Contracts Act were exploited;
an unfortunate Adjudication decision threatened significant injustice to the Owners.

 

(Major events, payments - red text)

 

This is the condensed version of events. Only the more significant details are included.

Timeline:

2007 April 29 - The Owners attend the Home Show.

The Owners met with Design-Build (previously known as a kitchen designer) and discussed the possibility of building a retirement home - a modest 3-bedroom home, wheelchair-friendly, on a small section overlooking a park.
Owners wanted a fixed price whole-build contract.
Owners advised Design-Build:
  - they had sold their Lifestyle property and were renting (expensively, in a period of high rental demand);
  - while consent access to building site was awaited, wanted all preparations made ready to start building.

Notes: Other designers and builders in area were too busy to consider Owner's project.
Reason - there was immense speculation in the housing market, due to easy credit world-wide.
Owners were under pressure of high rent in a house that had to be vacated before overseas owners returned for the holiday season, so were anxious to get house planning under way.

2007 May 15 - The Owners with sketch plans had an appointment with Design-Build.

Originally stated goal $500,000 including section $170,000.
Design-Build reduced living space down to suit his $1800/m2;
(approx 220m2 includes large double garage);
Owners were stretching resources by budgeting at $400,000 (inc GST).

2007 May 23 - $5,000 paid to Design-Build for Concept drawings, from Owners' sketches.

2007 June 7 - Updating of concept drawings with Owners' desired alterations.

Design-Build, worryingly, becomes a little dismissive and arrogant about what Owners should have in their home - is adamant Owners cannot have some things Owners want, but insists Owners must accept his ideals -
eg. his “integrated” (front panel same as kitchen benches) fridge-freezer which is tall and narrow requiring step-stool for owners to access the top of, definitely not wheelchair-friendly.

Design-Build was exerting pressure to commit.

2007 July 17 - The Owners took Design-Build's proposed contract directly to Legal for perusal.

Legal expressed concern about some parts of the contract.
Progress payments seemed to be excessively forward-loaded.

Comment: It must be mentioned that the same legal advisor had earlier raised the ire of the development land vendors:
The Vendors and Owners had enjoyed a good relationship in a previous property transaction.
The Vendors had kindly offered the Owners sole right to build using the existing subdivision '224' title rather than wait for individual titles to come through, to sooner alleviate the Owners' demanding rental situation.
The Vendors alleged that Owners' Legal had made protracted over-zealous scrutiny of their title paperwork.
The Owners could ascertain no valid reason why Legal appeared to be "crying 'Wolf!'" and delaying progress.
The Vendors protested that their paperwork was well proven through years of accepted use.
The Owners had been embarrassed by this, only weeks before the Design-Build contract was scrutinised.

On this occasion when Legal warned Owners that Design-Build contract progress payments seemed forward-loaded, Owners were inclined to believe that Legal was "crying 'Wolf!'" again.

The Owners could see little significance in the concern over forward payments and no advice was received regarding any specific dangers therein.

Rather, the Owners were left to conclude that their prime concern should be to do with the all-up final contract price, and saw no danger if Design-Build was imbursed somewhat earlier than required.

The Owners remarked that any earliness of progress payments as a goodwill gesture should encourage good building progress.

2007 July 23 - Legal emailed Owners -

Legal would contact Design-Build "first thing tomorrow and talk through the issues that I have mainly the value of the progress payments and fixing the contract price."

After waiting a few days for legal processes, amendments etc., Owners received no further advice, so, being under pressure to make progress:

2007 July 26 - The Owners travelled to the city again to see Design-Build.

In passing near premises of Legal, Owners asked to uplift the contract for signing.
Legal was not available but office staff enthusiastically handed over the documents.

The Owners were only slightly surprised to see no obvious changes to the contract, expecting that Legal had realised they had been overly pedantic with their earlier warning.

The Owners met with Design-Build who claimed he had spoken to Legal with reassurance about contract concerns:

The Owners signed contract and paid $20,000 to Design-Build to get drawings under way.

 

2007 August -

2007 September -

Comment: The months roll by.

The subdivision '224' title certificate was issued on or about 25 September 2007.
The Vendors had kindly offered the Owners sole right to build using this '224' title rather than wait for individual titles to come through, to sooner alleviate the Owners' demanding rental situation.
But to the Owners' frustration, delays by Design-Build see this privilege lost to a more diligent builder.

 

2007 October -

The Owners paying rent and storage wonder how long it should take to do plans for a simple modest house.

 

2007 November 19 - Owners signed and paid balance of section Title (dated 31/10/07):

Design-Build SHOULD BE STARTING TO BUILD THE HOUSE NOW.

Design-Build has had use of owner's first $25,000 for 4 months now, and having been keen to start the project has since produced little to show for it...

2007 November 22 -

Design-Build wanted next $25,000 of contract.
This payment brought total paid to date by Owners to Design-Build to $50,000.

Year 2008

2008 January 21 - The Owners contacted Council, checking for availability of Building Consent.

Council said plans were not filed until 10 January!

2008 January 22 - Design-Build replied to email about late filing of plans

Design-Build replied that he didn't know engineer hadn't filed them.

Design-Build has hired 2 new builders - "one of finest teams in country - keen to start."

2008 February 7 - Owners visited Design-Build.

The Owners were not happy about Design-Build's reluctance to get drawings updated.
Design-Build claims council will be confused by drawing detail changes.

Design-Build introduced Owners to Builders.

Design-Build advised Owners to consult with Builders re building project queries, and to contact him only for design matters.

2008 February 11 - At last some action on building site.

Electricity Meter box being temporarily installed, but no phone cable?
Disgruntled cable-layer later alleged not paid for earlier work.
Builders doing house profile.

2008 February 14 - Delay preparing foundations

Delay is because no formwork shutters have been provided.
Instead Builders were considering preparing house framework on site to lessen delays.

Builders not happy as they have allegedly not been paid lately.
Builders complaining about changes to their contract with Design-Build.

The Owners worried because they have paid Design-Build $50,000 to date, yet Design-Build is apparently not paying Builders.

2008 February 20 - The Owners were phoned by disgruntled Builders;

Builders want to meet Owners on site, 11am, to complain again they had not been paid.

2008 February 21 - Builders got some pay from Design-Build.

Builders unhappy with erratic deliveries of materials, and shortages.

The Owners became concerned at obvious lack of progress and apparent lack of project management.
The Owners were approached by independant observers concerned that the Builders often just sat around.

2008 February 25 - The Owners began checking the site most days, appalled to see idle contractors.

Builders annoyed they had to resort to fetching materials, blaming woeful project management.

Building Supplier has no framing timber ready because no plans have been provided by Design-Build.

2008 February 29 - Worried Owners looked for further help -

The Owners acting on legal advice contacted Building Arbitrator.
Arbitrator has had dealings with Design-Build before.

2008 March 5 - Drawings need to be altered by Design-Build:

The Owners noticed that Wafflefloor slab was not suitable to bear weight of van.

The Owners received letter from Legal advising NOT to pay Design-Build any more money.

2008 March 6 - Concrete footings were poured for garage, but failed Inspection:

Council Building Inspector failed the site for ongoing work:
A required second independent survey had not been made.
This should have been arranged by Design-Build.

2008 March 7 - Neglected forward planning and ordering delayed work:

Second survey was achieved, but no block layer was available until Monday 10th.
Builders left early claiming Design-Build supplied insufficient materials to work with.

2008 March 12 - Angry Builders again phoned the Owners.

Builders complained again they hadn't been paid, and wanted Owners to pay them directly!

The Owners clarified definitely NOT; Owners had already paid Design-Build $50,000 quite some time ago.

The Builders obtained a Cash Cheque from Design-Build for $3245, which was dishonoured when presented at their bank.

Design-Build forwarded (via Builders) an account to Owners to pay a further $75,000.

This amount is scheduled in contract as payment for next stage AFTER the foundations are finished.
The foundations were not yet ready to pour.

Very worried Owners were taking further legal advice.

2008 March 14 - Legal called for meeting with Design-Build.

Design-Build responded that the present Builders were lousy builders and they were going to be fired.

Legal asked Design-Build for copy of Design-Build's Contract Works Insurance policy.

Reality was that foundations were not yet ready for concrete pouring.
Neither has inspection been arranged with council for corrected garage floor.

2008 March 17 - Monday: Unexpected work had been done on site over weekend.

Unknown persons had laid polythene and reinforcing over the garage area.
Builders had intended this to be left open until Tuesday to dry out, then be compacted.
The work was shoddy, obviously rushed. This compromised foundation preparations.
Photos were taken by Owners.

Builders phoned Owners to advise that Builders had been fired by Design-Build.

Building Inspector came for pre-pour inspection and failed site.

 

The Owners were distressed that their home building had stopped.
They feared they had lost the remainder of the $50,000 paid in advance to Design-Build.

 

Builders (fired by Design-Build) asked Owners if they could build the house.
Builders claimed they could do it cheaper and include decks
.
Legal approve in principle and were to prepare a contract.

Budget was Owners' original budgeted $400,000 less $50,000 already paid to Design-Build;
Some surprise handshakes (hand grabbing) ocurred on the figure of $350,000.
Mr Owner dissented, reminding and urging others to wait for written contract Legal were preparing.
Interim understanding was to work on an hourly rate until the new contract was ready.


2008 March 19 - Frustrating negotiations with Design-Build resulted in Legal advising Owners -

Legal had faxed Design-Build allegedly terminating Design-Build's contract.

The Owners took copy of letter allegedly terminating Design-Build contract to site.
The Owners asked Design-Build's workers to leave site, which they did.

2008 March 20 - The Owners met with Building Inspector on site.

Inspector looked at the quality of work and had to fail it.
The Owners to write to Council revoking Design-Build as owners' agent.
Inspector then noticed a discrepancy on permitted plans for Raftfloor:
The existing formwork and steelwork appeared to be a Wafflefloor design.

2008 March 25 - Email from allegedly cancelled Design-Build -

Design-Build said he had terminated Project Manager and dismissed Builders;
and that there were "...other accusations better addressed in court..."

Accusations? The Owners were puzzled by threats and claims of accusations;
The Owners have merely recorded events as witnessed, and acted on legal advice.
Now, Design-Build was NOT involved. Preparations were in hand for building to continue.

Builders obtained a replacement set of plans and were getting foundation ready.
Remedial work began in line with Inspection notes, re-starting the job at last.

Fresh Legal advice to Owners -

Pay Builders directly;
Contract with Design-Build was definitely cancelled;
Pay directly for concrete and pouring of floor slab.

Further, the invoice from Design-Build for $75,000 was invalid as contract was cancelled before site was ready for slab pouring!

The Owners were to arrange independent valuations of all the work done by allegedly cancelled Design-Build.

Legal confirmed they were still drawing up a "new (and better) contract with Builders."

2008 March 26 - A disturbing incident -

Plumbing phoned Owners to say from previous bad experiences with Builders, Plumbing would not work with Builders and withdrew their services.

Builders present their written quote for labour to Owners.
Estimate 14 weeks at $55 hr plus GST for 9 hour days totals $77,952.

The Owners now needed to abandon their all-up one price ideal and instead begin a detailed budget, to check Builders' ability to complete project as promised.
It would take some days to obtain quotes.

2008 March 28 - Foundation slab pour -

Concrete trucks, pumps, Concrete layers and Builders on site 7am for concrete pour.

2008 March 31 - Owner outgoings:

The Owners paid account for Concrete $9059.06
The Owners paid Water connection $507
The Owners paid $3339 cash for extra wages for Builders
- all monies Owners did not expect to pay separately.
Builders took Ms Owner to bank for cash wages withdrawal as they wouldn't accept a cheque, supposedly in light of Design-Build's dishonoured cheque - peculiar, as owners have no history of bad cheques.

2008 April 4 - Owner outgoings:

The Owners paid $4450 cash Builders wages - again wouldn't accept cheque.
The Owners paid $337.50 for re-engineering of beams of dubious design - via Builders.
[Noticed later that no GST Registration on invoice but GST was charged]

2008 April 7 - District Council deceived into obstructing:

Builders phoned council to arrange inspection and were refused.
Owners were told Council had put HOLD on all inspections "until the dispute is resolved".
Owners went to Council and clarified there was no dispute, that Design-Build contract was cancelled.

2008 April 8 - Remedial work:

Plumbers doing more work on site - tunneling under floor slab near south toilet.
No overflow had been provided and if it ever blocked, waste could come up shower drain.
More remedial work, to extend sewer pipe to a new gully trap as a back vent.

The Owners paid $1,700 Joinery deposit amount for windows to Builders (see 16/4/08)

The Owners paid $6,500 Roof deposit to Builders (see 17/4/08)

2008 April 11 - Owner outgoings:

The Owners paid $5,568 Builders cash wages.

2008 April 12 - New Budget:

The Owners have all quotes and estimates in spreadsheet and project is over budget.
Owners realise Builders quoted rate is too high for too long;
Builders cannot build within the amount Builders promised!

2008 April 15 - Owner outgoings:

The Owners paid $28,188.54 Building Supplier frames and trusses deposit to Builders (see 22/4/08)

2008 April 16 - Budget problem identified:

Owner phoned Builders to query their quote: (rates and/or weeks) unacceptably high, please reconsider.

The Owners talked with Legal who said Builders had been in without appointment demanding to see them.

Legal phoned Owners to suggest Builders rates perhaps were not too unreasonable.
Owners expected they would sign once contract was drawn up.

[16/4/08 Joinery refunded $1700 to Builders demand, Owners unaware - see May 2]

2008 April 17 - more Owner outgoings -

The Owners paid $555.24 to Builders for Plumbing, which included checking earlier plumbing work.
The Owners paid $5429.25 to Builders for Plumbing's drainage work.

[6/5/08 - Roofing refunded $6,000 to Builders demand, Owners unaware - see May 6]

2008 April 21 - Legal to Design-Build:

Legal sent response to Design-Build re payment claim for $75,000 with letter from Building Arbitrator of valuation of work done up to termination;
Design-Build should refund Owners $15,126.66 according to Arbitrator's reckoning.

Legal phoned asking if Owners had heard from Builders as they had not returned Legal's call.
Later, Legal said Builders had contacted them, ranting;
Legal suggested Owners begin looking for other builders...

The Owners phoned Building Supplier to check that Builders had paid framing deposit money which Owners had entrusted to Builders.
Building Supplier said they had been informed project was on HOLD.
Building Supplier would not disclose whether $28,188 framing deposit payment was held by them or not, quoting Privacy Act.

2008 April 23 -

Legal wants copies of accounts and moneys paid to Builders.

2008 April 30 -

Legal phoned Owners to advise receipt of Builders' lawyer letter stating Builders were keeping all the deposit money entrusted to them, alleging:
Owners have allegedly broken contract, and
Owners have hired other builders!

The Owners were shocked; both allegations untrue -
Owners wishing that they DID have other builders.
It was to take weeks unfortunately, for highly regarded local builders to prepare quotes for Owners.

 

All work on house stopped again.

 

2008 May 2 - Owners checking status of their deposit monies -

The Owners had emailed Roofing and Joinery, asking if deposits were refundable or transferable to another builder.

Joinery replied that Builders had come in with plausible reason for cancellation so had refunded $1700 on April 16.

2008 May 6 -

Roofing phoned saying Builders had deposited $6,000 (not the $6500 Owners paid Builders) and it had been refunded to them on 17 April.

This reveals that Builders took back deposit money for themselves before there was any chance to sign the contract still being prepared by Legal.

The Owners were advised by letter from Cladding saying they would not supply cladding for house without written permission of Design-Build, because of issues in dispute.

2008 May 19 -

Legal emailed they had received no response from Builders lawyer so were going to file proceedings at Court.

2008 May 28 -

The Owners received copy of letter from Builders' lawyer claiming contract definitely existed between Builders and Owners.

The Owners responded:
Owners never denied intent to sign contract when it was ready, as proven in their response.
The Owners DID NOT terminate Builders' work.
Owners DO NOT have another builder.

Legal were to draft a response to Builders' lawyer.

 

2008 June 8 - New Builder brought a Contract and Certified Builder's Guarantee for Owners to check.
New Builder has ordered framing; start date is 18 June.

2008 June 9 -

New Builder phoned Owners to advise that Council would not let New Builders see the plans and that no inspections could be made on the property! Council still has HOLD on them allegedly pending a Court case.

2008 June 10 -

Email from Legal with another copy of the Cancellation of Contract letter and a covering letter to Council.

2008 June 11 -

The Owners went to Council and asked to see plans.
Council was allegedly busy so Owners asked if they could wait for service.
So Owners sat and waited: For two and half hours.
Hearings were in progress so lots of people passed by, noticing Owners waiting and upset.
Eventually Council's Customer Services became concerned and allowed Owners to photocopy plans, which were needed by New Builders.

2008 June 12 -

Legal emailed New Builders and Owners to say house plans usage was in order;
There should be no problems regarding copyright.
New Builders contacted Council who supplied consent to build and inspect, in writing.

2008 June 13 -

New Builders brought final Contract, which Owners signed.
Arrangements were made for Certified Builders Guarantee.

New Builders were getting on with house construction.

 

2008 August 7 -

Legal suggested Owners take previous Builders to Disputes Tribunal:
Make an initial claim of $6,500 for Roof deposit taken by Builders

- then consider how to proceed from there.

2008 August 18 -

The Owners Filed papers at Disputes Tribunal Tauranga against Builders - fee $100.

2008 September 10 -

The Owners were served papers from Design-Build claiming $75,000 threatening Adjudication under Construction Contracts Act.
(Design-Build was overpaid for his work according to Arbitrator's earlier findings.)

Legal said wait a week, then if papers actually filed Owners must consider filing a counter-claim.

2008 September 17 -

Legal said Adjudication papers had been filed by Design-Build's new Legal.

Legal contacted Arbitrator and believed requesting an out-of-town Adjudicator was advisable.

The Owners and Legal forced to begin an expensive exercise to prepare a response to Design-Build's ambitions.

 

2008 Mid-October

The Owners took Builders to Small Claims Tribunal in an attempt to recover one of the stolen deposit payments, the $6000 for the roofing.

The Owners reported that the Small Claims hearing seemed a farce.
The Builders hijacked the hearing by going to the Referee immediately beforehand.
The Referee remarked that their approach was rather out-of-order.
The Builders imposed a counterclaim which made no sense to the Owners.
The Referee let the Builders open the hearing with some outrageous counterclaims.
When the Owners eventually interrupted, that seemingly was the Referee's cue to abandon the hearing.

The referee ordered the Owners claim should be referred to the district court.
The Referee ruled the total amount (over $36,000) was too large for this venue.
(The Owners had only asked for the $6000 theft to be dealt with;
the Owners never mentioned the other amounts, nor dealing with them, concurrently or otherwise).

The Referee stood over the Owners and demanded that they accept that the Builders be allowed to present their case as a Limited Company, and demanded that the Owners accept presentation of the counterclaim.
The Builders left the hearing exclaiming "Yes!" jubilantly; the Owners felt they had not been heard.

The Owners were astonished to read later in the written ruling that they had volunteered agreement to the Limited Company and Counterclaim matters, when the Owners believed they had clearly been presented as part of the Referee's ruling.
The Owners began to prepare a complaint against the hearing procedure, but health impacts and other demands saw the very few days allowed expire.
The Owners could perceive no likely justice from taking the limited company to court; it would predictably prove cash-less and asset-less. All that would likely be achieved was huge court costs for Owners to pay.
The Owners worried that the Builder's Legal appeared to be in the same building as the Referee... too close?

Comments:
The Limited Liability Company law seems a despicable piece of legislation when used in this scenario, with liquidation effectively providing a disposable shield, harbouring theft.
The Small Claims Tribunal hearings can be hijacked by unscrupulous participants with corresponding support.

 

2008 November -

The Adjudicator reached a decision regarding Design-Build ambitions, but disputes over who should pay the $10,000 fee caused the determination to be withheld into the new year.

 

2009 January 16 -

The Owners received email late Friday from Legal with a large attachment -

Adjudicator determination: Owners must pay Design-Build some $70,000 more!

The Adjudicator disregarded the valuations of work done.
Valuations were allowed as a feature of the Design-Build contract.
Valuation of work actually done by Design-Build was crucial to justice being done.

Additionally disturbing was the ruling that the contract WAS NOT TERMINATED!
The Owners were astonished, disbelieving and shaken.
It was entirely the actions of Design-Build that caused the contract to stall.

Comment: The Adjudicator doesn't seem to have considered justice for the Owners.
The Owners worry what the real intent of the Construction Contracts Act is.

The Owners felt this was a travesty of justice under the Construction Contracts Act.
If valuations in failed contracts were able to be disregarded so easily, unethical contractors could easily include excessively forward-loaded progress payments of fraudulent intent.
Why would such contractors finish anyone's house if it was easier and more profitable to "fail"?

Legal thought the adjudication determination was flawed, and could be overturned in district court.

An unexpected 2nd Opinion suggested that overturning the determination was most unlikely -
warning of the Adjudicator's supposedly high repute and experience;
suggested Owners Legal would not be able to overturn the determination;
that there was no right of appeal; and
that Legal was in error omitting simple essential steps during the attempt to terminate the contract;
noted was Owners being allowed to sign an un-altered contract containing onerous progress payments.
2nd Opinion encouraged Owners to demand that Legal pay for Owners' losses because of Legal's allegedly inadequate services...

2nd Opinion eventually disclosed he was an acquaintance of, and advisor to the Adjudicator in this matter!

Comment: Advice should be professional and unbiased though, shouldn't it? In other professions?

Within days, Owners wrote to Legal asking them to account for this situation.
Owners asked if some of Legal's actions, or slowness, or inactions, may have compromised Legal's ability to represent Owners, and whether this could acceptably be remedied by suitable Legal goodwill.
Legal advised they were unavailable for several days.

Meanwhile, Owners were calling many contacts searching for help.

2nd Opinion provided further encouragement to Owners to challenge Legal's poor performance.

2009 February -

The Owners at wit's end. With no response from Legal, Owners decided to tackle Legal head-on.

The Owners asked Legal if they would concede to their poor performance and pay Owners losses.

Legal took umbrage and wrote copiously defending their actions and advised that they would no longer act for Owners.

Comment: Not a helpful result. Owners suspected they were being set up for exploitation by the legal industry.

The next day a long-awaited 3rd Opinion strongly advised Owners to stay with Legal:
Legal were reputable and believable if they thought they could overturn the adjudication.

This 3rd Opinion utterly contradicted 2nd Opinion. The Owners were bewildered.

Legal had left a door open for Owners to repair the relationship.

The Owners without delay embarked upon apologies to Legal.

Comment: The Owners remained less than impressed with the standard of support they had paid for so far.
Owners feared that support would fall further after having acted upon 2nd Opinion and soured the client relationship;
perhaps that's what 2nd Opinion intended, while also intimately observing responses to the Adjudication.

2009 February 9 -

The Owners received Council “Code Compliance” for their nearly completed house -
a welcome success, and a tribute to the work of their new builders and contractors.

2009 February 19 - Owners experienced more Design-Build predatory tactics:

Anxieties increased when furtive photographs were taken of Owner's property from a slow-moving vehicle (retro-ugly silver car with whiny mechanicals).
The Owners felt such intimidation was appalling! The Police were notified.

Legal were taking quite some time to form a response to the unconscionable Adjudication.

2009 February 27 - Unexpected Legal advice:

Design-Build has applied for a "Distress Warrant" against Owners;
Legal warned Owners that Justice Department Collections staff were to remove retirees' property in lieu of payment.
The Owners have not been advised to pay, believing that would be futile before there has been a court case.

Legal advised Owners to immediately go into hiding from the bailiff;
so notice could not be served, for taking possessions from retiree Owners to enrich Design-Build.
The Owners hurriedly secured major possessions as much as possible.
The Owners found it overwhelmingly distressing to pack up and rush into hiding.

2009 March 5 - Third month after Adjudication; Owners got appointment to see Legal:

Legal advised Owners they must raise the amount of the payment adjudicated;
by bank loan or whatever means, as soon as possible.

Ms Owner was distraught.
Mr Owner realised that he would be forced out of retirement to join the hordes looking for employment, and effectively be enslaved for the remainder of his life to Design-Build.

The Owners were advised to consider placing property into the protection of a trust.
The Owners decided it would be ethically compromising and too devious to contemplate, especially at this late stage.

2009 March 9 - Owners forced to live like fugitives, awaiting bank loan.

Bank was reluctant to loan, while bailiff action was threatening the property the loan would be secured over.
Owners were getting more distraught...

More of the Owners' dreams were shattered - the years of scrimping and saving for their motor-home in vain.
The large vehicle was difficult to find storage for and was deteriorating stored outdoors.
Reluctantly it was placed on the market, which could help meet legal costs.
It was a buyer's market, so it would be a long hard sell.

2009 April 30 - another drive-by camera intimidation incident.

This time the incident was dealt with by police, with fortuitous camera evidence to prove it was Design-Build. Police informed Owners that Design-Build was warned to desist.

2009 May 1 - The "Distress warrant" against the Owners was withdrawn!

It seems that under the Construction Contracts Act, a distress warrant offensive can only be targeted at a company or a trust, not against private citizens like the Owners.
Legal appeared not to know that; the advice came from another consultant.
It was described by those who invoked then withdrew it as "inappropriate". Others called it "illegal" .

The unconscionable Adjudication ruling still stands.
The Owners were now forced to fight this injustice. Legal preparations began anew.
Valuers were engaged to clearly establish the value of work at specific stages of the build.
Winter and stress brought influenza to normally-resistant Owners, but thankfully some seasonal shift work for Mr Owner.

The Owners let Legal embark upon the suggestions of a court judge:
This involved preparations towards meeting Design-Build in court to seek a settlement.
But Design-Build refused to participate.

Design-Build pressed for "Summary Judgement" to enforce Adjudication against Owners
Probable reason: A quick-fire Summary Judgement may not look too closely at the quality of the adjudication.
The Owners learned that they could not refuse to respond to this.
Legal stated that court attendance was restricted to legal representatives.

A few months later, the court Summary Judgement had been adjourned (cancelled) on three occasions, delays blamed on courthouse time constraints.
The Owners noted their payments to Legal now exceeded $50,000.

2009 October -

The Owners attended the "Summary Judgement" hearing;
with apologies from Legal who had previously maintained the Owners could not attend.
It was revealed the plaintiff had faced liquidation on multiple occasions.
The Judge was anxious to not allow action that could later prove not reversible, and unjust...

The Judge decided more time was needed to consider the unusual submissions.
Time predictions for delivering a decision were impossible as court staff were taking strike action.

2009 November - Legal urged Owners to decide whether to prepare a defence -

Legal recommended filing a separate District Court claim against Design-Build;
in case the Judge decided to enforce the Adjudication by Summary Judgement.
The frugal option was to hope for a just outcome, dismissing the fraudulent progress payment demands.

 

The Owners were attending to other matters including some repeat surgery for Ms Owner, and finding payment for Legal charges at the hefty rates Legal awarded themselves for court attendance.

The Owners noted it was becoming more difficult to find fresh advice.
Mr Owner had not achieved many hours of income in recent months.

Over the holiday period, Owners' friends and family urging Owners not to be drawn into further litigation profiteering by lawyers.

 

Design-Build has gone into liquidation, owing substantial amounts to many in the building trade and lawyers. Owners noted that Design-Build still maintains another registered operation which he could possibly trade under.

2010 February -

It has been over 3 months since the court hearing without word from the Judge.
Owners fear the liquidator for Design-Build may have the Bailiff attempt to rob them all over again.

 

Without prejudice.