Flooring gone wrong - can they do this?

Lneophytte on 09/03/2014 - 09:56
Last edited 11/03/2014 - 16:53

Hi folks,

Got a bit of a sticky situation, hoping someone can provide some advice.

We arranged at the end of last year/early this year to get all the carpet in our house removed, replaced by laminate floorboards - this consists of 4 bedrooms, a lounge, dining and games room. We scheduled it in for February and divided it over three weeks, as we had a lot of stuff that needed moving from one room to another - I'm working full time and my wife was 4 months pregnant at the time. We paid the deposit a month prior to the installation, and it came to roughly 30% of the total cost.

On the third (and final) week of the installation we queried with the installers (who are subcontracted from a different company) when our final payment was due, and they were surprised we hadn't heard from the company as they said it's usually due prior to the final installation. He said they would be in contact shortly. Later in the day, he got a call and then came and spoke to us. He asked us if we liked the flooring, to which we replied "yes", then he said that was good, as they had installed the wrong flooring.

We were a bit in shock, as you can imagine - this conversation took place when the majority of the flooring was laid, and they were doing the fiddly beading bits at the end of it (which take as much time as pulling up the carpets and putting the floorboards in place).

We hadn't been contacted by the company until this week, they called my wife at home on Wednesday, telling her that immediate payment was due, when my wife queried about the fact that incorrect flooring was laid, they got very defensive saying that was their mistake and eventually offering a $200 discount. My wife asked
for a 10% discount.

Just to point out, the flooring laid was a more expensive product, however we didn't choose this one for non-financial reasons. I'm a guitarist and my son is an aspiring drummer, so our final decision was based on the acoustic properties.

So my wife asked me to call, and I spoke to the General Manager, who suggested he was not going to offer anything beyond the $200 discount, or he would send around the installers and rip up all the floor and re-lay it. With my wife being (now 5 months) pregnant, this was not a practical solution to us.

Things quickly made it to a heated conversation, and I said I would call the Department of Consumer Affairs to see what my rights are, and he said he would be calling a debt collector to recover his funds. Note that this is the day after we were requested final payment.

I called the DCA who put me through to the Building Commission, who said I need to lodge a notice of complaint, which I've downloaded and filled out.

We didn't receive any terms and conditions of sale when we first made the deposit, so we are at a loss as to whether they can actually call a debt collector on us, with one phone call after the fact, and no other contact during the installation from the time we went to the shop and paid the deposit.

Anyone?

Thanks

Richard

Update 11th March

Hi everyone, thank you for your feedback, both positive, negative or indifferent. I'm happy to say the company came back with an offer between the initial $200 and the 10%, which we have accepted and will move on.

For those of you who thought this was 'BS' and 'just another whinge' I apologize, but in a situation where we don't know if we are in the right (or if we're asking an ridiculous amount) it is good to get the moral judgement of a cross section of the community.

And thanks to OzBargain for providing this facility, as I wouldn't know who else to ask (without asking a friend, who would have a bias opinion).

Cheers

Richard

Home & Garden

Comments

neophytte on 11/03/2014 - 16:54

Please see the update in the topic.

Thanks

Richard
BhanuL on 11/03/2014 - 17:37

Being in the flooring business, I'd say your supplier is lucky to have a client like you:)
ankor on 12/03/2014 - 08:19

Glad to hear you got it sorted out.
Good luck with the baby!
- neophytte on 12/03/2014 - 11:16
  
  Thanks for your feedback and well wishes …
grasstown on 12/03/2014 - 08:58

What percentage of the job cost was required as deposit in the agreement? What percentage was the deposit to the amount they wanted from you (for the more expensive boards). I know it was roughly 30% of the price for the cheaper floorboards.
- neophytte on 12/03/2014 - 11:18
  
  Sorry, not sure I get your question - are you asking if we broke it up into labour costs/material costs, what the relative cost of the deposit was? Or if we had elected for the more expensive boards, what the required deposit would have been??
  - grasstown on 12/03/2014 - 18:14
    
    Yes if you had elected the more expensive boards, would the deposit required for that be what you in fact paid as deposit.
    - neophytte on 12/03/2014 - 22:38
      
      I'm not sure what the minimum deposit was, however going by my previous calculations, and remaining at the 30% - it would have been roughly another $500, as the (rough) calculations came out to it being around a $1500 increase in the cost of the more expensive flooring …
    - grasstown on 12/03/2014 - 23:46
      
      Ok, I was trying to work out whether there were any hints to you that the wrong boards were being installed. Say, the deposited amount worked out to be exactly 20% of agreed price of the expensive boards, then it should be apparent to you from the outset that the wrong expensive boards were being installed. In that case, I would say its not entirely fair for them to not be paid in full.
    - neophytte on 13/03/2014 - 00:47
      
      No, we paid the deposit over a month in advance of the work starting; I believe they made a mistake somewhere rather than trying to deceive us … if that's what you were alluding to?
SteveOh on 12/03/2014 - 10:23
Figured I'd reply anyway in case someone else has a similar problem. I've had my fair share of problems with incompetent tradies and I used to work in the 'construction list'.

It's good to see you sorted it out. This is what a 'small claims court' (the official name will vary depending on your state e.g. VCAT in VIC, CTTT in NSW etc)would have encouraged you to do. If you (you and the merchant) couldn't work it out then you would have been pretty much in the right but the result may have been close to what you negotiated anyway…

You said that there was no written contarct so common law principles would apply unless there's a relevant consumer or building law in your state or territory.

The common law rule 'the perfect tender rule' is that you have to be given exactly what you ordered or you don't owe a penny. Most consumer laws are similar. The situation may be a little different for commercial matters where statutes may provide that a 'reasonable substitute' may be provided unless expressly agreed in writing otherwise.

But… unless you've agreed in writing (signed a contract with a clause) stating that 'time is of the essence' the tradies will generally be allowed to 'cure' (in plain English 'fix') their mistake. So the guy's offer to rip up the wrong floor and put in the right one means you would have probably been stuck having to pay extra rent wherever you were staying provided he could rip up the mistakenly laid floor in a 'reasonable time'. Depending on which state you're in (I'm realy not up on the latest law for consequential damages in consumer cases) you might have been able to claim for the cost of your whereever you were renting for the extra time it took to rip up the wrong floor and lay the correct floor. Bt mayve this would have been less than 10% anyway dependng on how fast they were?

I don't think they can require the final installment until they've completed all the work.

The place sounds really dodgy. No written contract?! We're not talking about a hundred dollar job here. And acting all defensive when they stuff up!

One lesson I've learnt and this story reinforces it, is that tradies have terrible time management and communications skills. In some cases they take on more work than they can handle and then lie and make excuses when they can't do it on time. I would never give a tradie a deposit without a contract spelling out exactly when the deposit's refundable e.g. if they can't do it on time or can't get materials or stuff the job up.

If they'd just be honest it would prevent trouble. I had a guy replace my roof and when he quoted for the work he said 'I've got a long queue, I won't be able to do it until… do you still want to sign the contract?' I immediately signed because I was like 'wow a tradie who acts professional and can communicate!' Sure enough he did the work exactly when he said he would, I was happy to wait the four months because he told me it would be that long and I was able to plan. He did a great job and I paid fast!
- neophytte on 12/03/2014 - 11:31
  
  Thanks for your feedback, just to clarify the points for future readers (hello future people!), also noting we are in WA:
  
  1) The invoice written up did refer to a "Terms and Conditions", however we never received it - this may have been an oversight of the salesperson who wrote it up at the time; I looked on their website for a copy, but couldn't find it - I have still not seen their documentation on this.
  
  2) I believe you are correct here - whilst my wife has been pregnant we order from the Coles online, who either provide a refund or "an acceptable substitute", however (going on to point 3) we have to allow them to select one or the other via the order form.
  
  3) We had the dates of installation on the invoice, but not a "it must be finished by" clause
  
  4) This was a point in contention, as they had completed the work, albeit with the incorrect flooring.
  
  Just to clarify on your second last paragraph too, the company were the ones we went through, the tradies they subcontracted (one guy came for the three weeks and a second guy came on the last week) were great - because we were using the garage to store furniture and boxes, the car was out the front, and he suggested I move it due to where he was cutting. He gave us a fairly accurate description at the beginning of the day as to when he would complete it, etc.

Flooring gone wrong - can they do this?

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