I am a domestic subbie. I submitted my variations pricings to the
builder several months ago. Despite numerous letters and phone calls, he has paid
me nothing against my submission of thirty thousand pounds. I gave him full
details and back up at the time, and he has never asked for anything more. He
says the client’s quantity surveyor has been too busy to look at them, and he
refuses to pay me a penny until he gets paid. What can I do?
If you are a domestic subbie, it is unlikely that the conditions of
sub-contract tie you in to the client’s qs at all. You should remind the
builder that your sub-contract is with him. His alibi about the qs is
irrelevant. Also, pay when paid is not permissible under the Construction Act.
You might then consider the possibility
of adjudication under the Act. It
applies to most typical construction contracts, regardless of value and including
labour only. It does not apply to manufacture and supply only, nor to work as
part of process plants.
You should find that you are entitled to
give written notice of adjudication at any time regarding any dispute or difference
under the contract. Seven days later, the adjudicator appears and you must
present your referral notice (ie your detailed submission). The adjudicator has 28 days to make a
decision (42 days if you agree). He
will usually order the loser to pay his
fees. If you get a favourable award, and the builder refuses to pay, you can
sue him on the strength of the award. It seems
the courts are supportive of the Act.
It is vital to take advice first. The
builder may have built in some evasions or abuses of the Act. These include down payments and liability for costs.
See my earlier article “Dirty tricks and dodges”. Also, get an independent view
as to the strength of your case, and if it is cost effective to proceed. In your case, providing the variations are
supported by written instructions, and you have properly applied the valuation
rules of the sub-contract, then it ought to be worth the action. In many cases, just the threat of
adjudication will concentrate the builder’s mind. So stand up to the bully
boys.
John Russell
Contracts and Training Consultant
Email:
swsubbie@globalnet.co.uk
Web
site: www.jrconsultant.co.uk