If I ask my builder for proof of actual cost of variations, is he to supply...

Hi Charles. It doesn’t sound like you’re being unreasonable. Did he tell you up front what the cost would be or did he go ahead and do the variation and then bill you?

Please read the following regs,clause 3 variations,the builder must notify you of the cost of the variations before he does the work ,end of story,just take it to the tribunal that’s what its for. http://www.legislation.govt.nz/regulation/public/2014/0361/latest/DLM6322530.html Good luck.

Hi Mark, We didn’t even authorise the variation. The builder just did it as he said he needed to lower floor level on build as the driveway would have been too steep. We did not discuss any price, nor did he tell us it would cost more. We have no idea what we have paid for as the progression payments he asked for were all very large (around the 80k mark), with no detail on them other than progression payment. He billed us for this 18k. At the end of the build we had a number of issues and disputed a bill as we felt we had paid too much already. There are jobs not finished also. The builder has now changed the price on this variation (and the name of it to “extra work required for building consent”). The price is now 15% more than previous as we made a complaint about some of his work. He says he is allowed to do this as per the contract. We are at a total loss about this and a raft of other issues. Do extra work have to written? Or can just be verbal as that is what he is saying happened (which is didn’t)

Hi Sam & Charles, I’m not a lawyer, but I’ve spent many years managing construction projects, so I know from bitter experience that contractors (ie builders) often see different interpretations in contracts, although the meaning may look obvious to you. So regarding this one, firstly it seems to me it relates only to variations which arise from Council approval or consent in order to get the building consent. It says nothing about other variations. Secondly, although it says the contractor must state the effect on the price, it does not say he has to justify that with any specific documentation (eg invoices or quotes). It just says you have the right to cancel the contract if you don’t like the figure. Of course in this case you may have a bit of leverage, since it seems the contractor has gone outside the terms of these requirements, by proceeding before the variation was agreed. Hopefully that was pointed out in writing, the moment you could reasonably have become aware of it. Because if you knew, but failed to notify him, he could perhaps assume you did not disagree. Lastly, I think these new regs may have only started in early 2015, so perhaps your contract would need to have been signed after that.

Thank you so much for this Sam. Does this apply to changes which are classed as “extra work”? Builder told me and the courts that a variation is a change that a home owner wants changed which needs to be in writing. But work classed as “extra work required for building consent” does not need to be in writing. Thanks heaps again!!

thanks so much for the feedback. I guess no matter what the contract says, you can not contract out of the building act? So these variations/extra work would need to be in writing? the contract was signed in 2016. With the lowering of the floor height we knew of it as the builder said he was lowering the height. No consultation. No variation signed agreeing to this. We had to sign a minor variation form for council as the builder said he needed it for inspector. We did not know the new floor height would change the price. The builder did not mention any change in price. This among other changes he made without consultation. Which now have changed the price of the build. We are very frustrated and not sure how to defend ourselves at the disputes tribunal.

Sam thank you so much! you have basically sorted my defense :). Would just like to clarify one more question if you can help. That document you referred to states the builder must provide code of compliance before it submits final payment etc. However, my contract states its the owners responsibility to gain code of compliance. Does the document you refer to over rule this aspect in the contract? Thanks so much again! We are yet to be issued COC as builder will not supply any producer statements etc.

The implied terms in the act cover this under building consents clause 1.3. 1.3 If any approval or consent is issued subject to any conditions that will require a variation to the building work, the building contractor must advise the client, by notice, no later than 10 working days after the date the consent is issued, of— (a) the building work that will be required to achieve the variation; and (b) the effect (ie, the increase or decrease), if any, on the quoted or estimated price for the building work; and (c) the effect, if any, on the due date or the estimated due date for completion of the building work. 1.4 If the terms of the variation are not agreed within 10 working days of notice being given under clause 1.3, either party may, by notice, cancel the contract. 1.5 Notices under this clause must be in writing, despite anything to the contrary in the contract. Plainly put you the builder must notify you in the proper manner if you are to have any additional cost as it varies the contract terms. Its very clear what the procedure is ,if they don’t abide by it then you would be justified in not paying for it as the “professional” you are using should have been aware of it at the least and in turn should have made you aware of it,passing the buck onto you won’t work. It would probably fair to say you would not have signed the contract if you had known this could happen. Please check your contract to see if there is a dispute procedure in it. Sounds like he is taking advantage of you. I wouldn’t worry about the tribunal process as they are used to these sorts of things in a very simple and factual way,heresay is not a good defence ,so long as you have anything in writing to support yourself.Its a very inexpensive way to deal with these sorts of problems. Hope it works out for you.

Schedule 3 clause 2 of the building remedies as follows,2 Code compliance certificates 2.1 The building contractor undertakes to obtain all code compliance certificates. 2.2 The building contractor must provide the code compliance certificates to the client before the building contractor submits its final payment claim under the contract. Its fairly straight forward if he did the work he should obtain the code of compliance,I don’t believe you can contract out of that anymore. This whole section covers it:http://www.legislation.govt.nz/regulation/public/2014/0361/latest/DLM6322530.html . If he breaches this it opens the door for you to obtain damages for any losses you have incurred due to this such as rent and interest etc,to obtain this you would have to take a civil claim against him. Put a complaint in to the master builder or whoever he is affiliated with. This legislation was introduced to take away some of the “surprises” in a contract that people unwittingly sign. Its clearly deceptive on his part. That’s my grasp as I see it.