Hi Ozbargainers,
Our house completed build last October. It required new driveway, concreting and we were thinking of replacing our fences. Having had chat with our neighbours and gotten their agreement, we have gotten a few quotes and found this landscaper whom agreed to do the work. He told us that to do the fence, our existing retaining wall will need to be replaced due to drainage issues (the retaining was is build as part of new house). He seemed to be quite experienced and honest, so we agreed.
After agreeing with the quote which he suggested us to do (fencing, retaining wall, concreting, decking and side gates) and paid him 5000 dollars deposit. This is where our nightmare has started. To get to the point I will skip all the other troubles, but basically in the lines of once we've made a significant payment, he will ask for more and refuse to do any work nor refund unless we comply. We were eager to move into our house due to financial and security concerns, so after a number arguments an addition 7000 dollars later, we asked him to send us in writing no more surprise payments he agreed.
After almost 2 months our concreting was finally retaining wall was half complete and he disappeared. By the time he re-appear, it was already after Xmas in Jan. His excuse was to his mother was sick and he needs to look after her. We said we understand but urged him to start work as soon as he can. Then nothing happened again we finally had to move in as we can no longer afford our house been vacant for so long.
When we moved in, we noticed that his retaining wall is built far from where the old fence was, and we sent him a text asking him to confirm if the fence will be at the right place. He did not reply, so we kept calling him until he answered, he said that it was not first and then said it was after. We became suspicious and did some of our own investigation. Comparing with the reestablishment survey report as part of the house built the fence is not on the boundary where the old fence was and with places which as wide as 20cm. We contacted him again asking him to address this, he told us to get another survey, if it is indeed not right, he will fix it. So we had to spend another 500 dollars on the other survey which should exactly the issue. He kept on arguing that the surveyor is wrong, and used a width and length measure we supplied to him as 'evidence' we provided 'wrong' information.
Anyway, we disagreed, stating that there is no confusion with the boundary as there was an existing fence, there were also survey markings done beforehand. He said he did want to waste his time and drove off and ask us to send him a survey report. Quite fed up, we sent him the report via email and also told him that he has been not doing work for over a months and not willing to work out a resolution. If he didn't respond to us, we will have to find another person. So he didn't respond, and we proceed to find another person and raise a case to VCAT.
He called us saying that we cannot start our work cause we are breaching contract by getting some quotes (which we are doing). We cannot use the materials that he bought using our money. He said he already reported me to VCAT. I have contacted Consumer Affairs Victoria, they said the quote we signed does not comply with domestic building act, as he failed to provide required documents to us, for example his insurance policy, building code, and other relevant paperwork. It sounded like he was just making some empty threats.
But we really need to urgently get the work done, as it has been gone for more than 2 months since he pulled it down, and we have kids and elderly, the site is quite unfriendly and dangerous. In addition, his construction has caused quite a bit damage to neighbour's properties. But we are not sure if we can use the materials that he left on our yard, we think we should be able to as it is bought using our money but not sure if it is viewed the same from legal perspective. Hope anyone can give us some advices. Sorry for the mumbling as we are quite stressed.
Thanks for your feedback.
Ants
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Just to make it clear on what the disput is, the fence he was going to build will be around 15 cm narrowest and 28cm widest away from boundary. The below are facts:
Fact 1: The old fence he pulled down was right on the boundary
Fact 2: The survey done prior his work clearly marked the boundary and would have been there before he started work. (the marking at the front is still there, the marking at the back unfortunately were destroyed by his work.
Fact 3: He said verbally he will fix any issues should we do another survey and showing he is wrong.
Fact 4: Another survey done and marked again (costed us $500), showing exactly the same as per fact 1, 2.
Fact 5: He called it BS and surveyor not experienced enough.
Fact 6: We called and asked for resolution, he refused to address issues and warned us from engaging other tradesperson to complete fence.
Addition Facts:
Fact a: Fence was pulled down by him, the site is hazadous to all three owners sharing the boundary. This has been 3 months.
Fact b: He sent as a text message in Nov and asked us for the width and length of the block without any context. We provided exact measures as per survay. He said this is his "evidence" that we provided false information to him.
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I will provide updates as I go, we are going through proper legal means. I hope people will be more cautious than us. Consumer affairs victoria advised us that any work more than $5000 values are considered major, we should get proper contract signed as per domestic building contract act. We did not know and didn't do enough research, we were quite inexperienced. Hope who read this will be more careful. We should also note down contractors builders license number, insurance policy number, etc.
Just go ahead and get someone else to finish the job using the materials you have. Highly doubt a scam artist is going to take legal action against you and even if he does it's your chance to counter claim while you have him in vcat