Snippet 5
Personal Opinion – not legal advice…
It isn’t surprising to see (and be contacted) about disputes that are presenting. The time since the start of many builds mean there are many finishing and costs are tighter hence people may be chasing every dollar. Each dispute is unique and should be confidential between the Complainant, the engaged professionals, and the Respondent (person/company you have an issue with where you want a response). What I want to mention here are some key considerations for raising disputes and resolving them.
(1). As I am constantly reminded by my professionals: keep the emotion out of it.
(2). Start with a timeline of events: use Excel or the equivalent and log against each relevant day or week or month, in question (a). The action/incident, (b) briefly describe it and (c) tag in your ‘evidence’ (usually email or consent etc). There will possibly be a series of events that led to the overall problem.
(3). Write a memo to summarise this will makeup your own base report (your point of reference).
(4). Check out the LAW: we have the Consumer Guarantees Act (1993), Construction Contracts Act (2002), Building Act (2004), and numerous professional bodies that operate under NZ law (engineers, builders etc).
(5). Review your contracts: ideally you will have done this prior to signing but sometimes the words/clauses may pass over our heads when it doesn’t seem relevant at the start. A consultant may have given you a Short Form Agreement or a builder will have produced a MasterBuild or NZS3910 or some other fairly standard form contract. Read it and see how your complaint fits with the contract.
(6). If your complaint is due to a payment, whatever you do, follow the law!! You can not with-hold payment or certification without following the clearly laid out process (Construction Contracts Act 2002). Keep in mind that if you are disputing a subcontractor’s or consultant’s invoice, maybe it is only a part of the invoice, you can pay parts that are not in dispute. NZ construction depends on smooth flow of cash as in the end someone’s mortgage or food needs to be paid for. If the problem was on your side due to a misunderstanding, you may cause unnecessary financial harm to someone else.
(7). Open a professional conversation with the Respondent and use your memo as a talking point. See how you go, ideally have a second pair of ears with you.
(8 ). My opinion is that Contracts are FRAMEWORKS where we agree to work with someone/a company. When things go wrong, the contract should be able to guide us to the rightful resolution. For me, they have been really good (even if it isn’t in my favour – just have to accept it).
(9). To seek a resolution, if a discussion doesn’t work out, some routes are: a lawyer, a disputes resolution team (check out the Building Disputes Tribunal, Disputes Tribunal, or Professional Boards, and there are other groups that may assist with construction contract based issues), in your contract there may well be listed dispute resolution processes.
(10). And finally, to repeat, as hard as it is, do your best to keep emotion out of it.
