# Contract situation - help needed!



## dunne10 (28 Apr 2011)

Hi all,
Ok im in messy situation and I will try explain it to the best I can and I hope for good any advice possible.

I got in a contractor a exactly a year ago this month, we agreed on a price contract signed and away he started. The worked graually stopped, first payment 30k was signed off by engineer and paid and the contractor again worked away for two weeks and it stopped again. At this stage I got aggigtated and suspicious.
It then took a few months the blocks were done to pre cast level, he had asked for cash and at this stage I stupidly gave cash to pay for the pre cast floor. That was done and I paid for it.
Work started again and he requested the next 30k payment from my engineer, I received this cheque but refused hand it over as the work had not been done and evemtually the engineer said it was and that it was ok to pay as it was needed to progress to roofing. Now all work has stopped and there are blocks to be laid before roofing starts, the block layers have not been paid and are refusing come back. My contract advises that he is in financial trouble and will possibly fold his Ltd. company. He says that there is near 70k work done and that he will finsh site works and plumbing but I may provided materials. I am now left with blockwork not yet finished half site digging work done, no cills in and garage foundations not started. The contractor is full of promises but its a year and he has done anymore than 3 months work. He claims he can prove the expenses that are gone into the work and that there has been 14k paid on VAT.

My engineer is staying very quiet. My solicitor says I have no legal standings as he will just fold the company as its ltd, my quantity surveyor says there is at most 40k work done if blocks are finished.

I was also told there was home bond and insurance on site but thsoe documents have not been produced.

So to sum it, he has 30k on me if its that value of work. My engineer has over signed for nearly 25k and i presume the 10k cash is just gone even though I paid that to pre cast company.

My questions are -
- What if anything can I chase the contractor on?
- Do I claim off the engineers insurance?
- Do I advise my mortgage company?
- Or do I just walk away?

Please help and any advise or who to contact will be much appreciated..

Thanks


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## kkelliher (28 Apr 2011)

To start with I am supprised that you have to ask these questions when you have an Engineer and a Quantity Surveyor working in your team.

In order to give a clear answer I need need some further information including:
(1) The form of Contract Signed
(2) The agreed schedule of payments

If you paid cash (was it to your builder or directly to the precast company as its not clear) for anything you will not get this back unless you can agree with your builder. You have no legal rights to recover against anyone when you pay "cash" as it is seen in the eyes of the law as "defrauding the revenue" by avoiding VAT. A court will not hear a case where this has occured.

You are not generally obligated to pay anymore than is contractually entitled and vice versa with the builder. He is entitled to be paid for work done (you may be able to cancel the contract and appoint a second builder). 

If you have to rectify any of his work you can contra charge him for this. Was he a limited company or sole trader. IF he is a limited company and has gone bust you will find it hard to get anywhere. If he is a sole trader you can chase him personally for any debt owed.

In relation to the engineer, I dont understand why he was signing off on a monetary value when you had a quantity surveyor. I can understand the engineer signing off on the works done but why the money?

If you notify your mortgage company of this issue you may bring more trouble on yourself. The best thing to do is get indepenant advice on how to get the property finishes for te remaining budget. You may have to do some finishes at a later stage but at least the property will get finished and bank will be happy.


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## Superman (28 Apr 2011)

kkelliher said:


> If you paid cash (was it to your builder or directly to the precast company as its not clear) for anything you will not get this back unless you can agree with your builder. You have no legal rights to recover against anyone when you pay "cash" as it is seen in the eyes of the law as "defrauding the revenue" by avoiding VAT. A court will not hear a case where this has occured.


That's not always true - it is for the contractor to ensure that his tax affairs are in order. Not for the client. There may be an issue as to why cash was paid however (an illegal purpose - to defraud the Revenue) and there may be an evidential issue if there is no paper trail and the contractor denies it.



> In relation to the engineer, I dont understand why he was signing off on a monetary value when you had a quantity surveyor. I can understand the engineer signing off on the works done but why the money?



Assuming standard practice (and standard relationship between OP and the engineer), the engineer was negligent in signing that work was complete which was not in fact complete (or more likely didn't even get into the value of the work complete at all and simply signed whatever the contractor asked for).
OP, was the engineer aware of the cash payment? Assuming he was, you would be able to sue against his insurance for the over-certification.

OP, you will need legal advice on this.


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## kkelliher (28 Apr 2011)

Superman said:


> That's not always true - it is for the contractor to ensure that his tax affairs are in order. Not for the client. There may be an issue as to why cash was paid however (an illegal purpose - to defraud the Revenue) and there may be an evidential issue if there is no paper trail and the contractor denies it.
> 
> 
> 
> ...


 

Superman; I agree with your points. My post was in relation to my understanding of the situation given the way the OP outlined the issue in her post. 

The issue of the Engineer as per my post needs clarification as its not clear if he signed off work or value? This issue could simply be one of valuation of the works completed as aposed to the actual work signed off.


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## Superman (28 Apr 2011)

kkelliher said:


> The issue of the Engineer as per my post needs clarification as its not clear if he signed off work or value? This issue could simply be one of valuation of the works completed as aposed to the actual work signed off.


I agree, issues need to be clarified, I am basing my interpretation on the sentence: 





> My engineer has over signed for nearly 25k


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## dunne10 (28 Apr 2011)

Apologies in delay in replying.

'In order to give a clear answer I need need some further information including:
(1) The form of Contract Signed
(2) The agreed schedule of payments'
- I signed a stanfard contract with 6 stage payments. Up to payment two is for €70k and that is for all blockwork to roof, site cleared, pre cast floor, cills  etc.
My engineer signed off on the first two payments and I paid 10k of this cash as per contractor request. 
- Issues are the work has not been completed to anywhere near this level, yet my engineer said it was and signed off on valuation for mortgage company and solicitor and ket me pay for the work.
- The contractor insists he will carry out the work but hasnt paid for anything apart from the pre cast floor which I paid the cash for. 
- When I questioned the engineer he got defensive and admitted the work does not match the value of 60k or 70k with cash. This is where my issue is? Can I chase him up on it as the contractor will just go bust and walk clear?


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## Superman (28 Apr 2011)

dunne10 said:


> Can I chase him up on it as the contractor will just go bust and walk clear?


You can only chase the Engineer when you suffer a loss - i.e. WHEN the contractor goes bust and takes your money. From what you have said however it does seem like you will have a good claim against the Engineer.

You need legal advice at this stage.


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## onq (28 Apr 2011)

dunne10 said:


> Hi all,
> Ok im in messy situation and I will try explain it to the best I can and I hope for good any advice possible.
> 
> I got in a contractor a exactly a year ago this month, we agreed on a price contract signed and away he started. The worked graually stopped, first payment 30k was signed off by engineer and paid and the contractor again worked away for two weeks and it stopped again. At this stage I got aggigtated and suspicious.
> ...



Hi dunne10

This is not how a job should be assessed or certified for payment.
I outline standard practice per my own professional experience to date below.
I would be happy to stand corrected if somone has other good practice advice to offer.

=================

The Main Contactor's Quantity Surveyor - often an in-house individual - or the Main Contractor himself makes an Application for Payment to the Employer.
Normally this is dealt with via the Employer's Quantity Surveyor or, if none is appointed, directly to the Architect who is the administrator of the Building Contract.

Where the client as Employer has appointed a Quantity Surveyor, he/she assesses the application for payment.
He/she may or may not make a formal site visit and depending on what is discovered on site, issues a Recommendation for Payment in accordance with the Application - or not, noting variations.

=================

The Architect, whether receiving the Application for Payment directly or after assessing a Recommendation for Payment from the Quantity Surveyor, reviews the works undertaken to date on site, the materials delivered and built in and takes a view on the Application and/or the Recommendation.

The architect may query the Application or the Recommendation or both. He is not obliged to accept the Q.S. recommendation.
The architect  should always inspect the site to make certain the work has been carried out in accordance with what has been claimed on the application.

=================

Strictly speaking, unless materials have been built in to the works, they should not be paid for, because title in most cases may still rest with the supplier.
Where the supplier has not been paid by the Main Contractor, even if he is domestic to the Main Contractor, he may have a claim on the goods supplied.

The architect may amend the certificate for payment as he sees fit, writing to the Main Contractor and Q.S. advising them of his decision and furnishing reasons for same.
This never goes down well, but it is part of the to-ing and fro-ing on the part of the architect to ensure that the client as Employer is not over-charged for goods supplied or works carried out to date.
Then, if he is satisfied with the claim, the architect then issues a Certificate for Payment.

The original Certificate for Payment goes to to the Contractor and a copy goes to the Employer and Q.S.
This should note the amount due to be paid by the Employer to the Contractor in numerical figures and in written form.
The calculation should show the amount paid to date and the amount now due to be paid, broken down into the Nett amount, VAT component and total (Nett + VAT) amount.

The Main Contractor then presents the Certificate for Payment to the Employer.

=================

My own experience is that if the architect, as part of his duties as contract administrator, does not - as a matter of principle - question at least one application for payment early on during the building programme [even if the query is subsequently proved to be unfounded] he can expect to be walked over by the Main Contractor. 

The exception to this general rule is where the Main Contractor  is the developer, but here the danger of not keeping the monies in accordance with the work done and materials supplied is more subtle.
The developer may wish to defraud the revenue by using the job as his personal bank account and pay himself more than the monies due.
Again, querying this never goes well and I have been dismissed from one project for refusing to over-certify monies due.

The danger of engaging in over certification is that it casts a slur on your professional character if it is discovered.
The architect has to plough a straight furrow or risk being embrolied in any dispute or investigation arising.

If he is found to have acted unprofessionally he may be struck off the register or liable to legal action.

=================

Sometimes the Q.S. does not make a site visit.
I know of one Q.S. who rubber stamped an Application for Payment as a  Recommendation for Payment.
The inspecting architect discovered only 9 of the  eighteen fire doors claimed had been delivered to site and none had been installed.
If these had been paid for and not built into the works, and the Mian Contractor had gone bust, the supplier could have taken them back.

In case you're missing the omission, the structural and civil engineer plays not part in inspecting or certifying anything other than specified items on a proper design team. They are competent to deal with and certify matters in relation to Part A Structure. There is no overall role for him in terms of small works like houses. This is part of the reason I refuse to cede my professions seniority to engineers!

=================

In answering the queries on the present case, you have referred to a "standard contract". This means nothing to me.


What kind of contract is it?
Is it a contract suitable for building a house with a named building professional as administrator?
Is it an RIAI Contract with or withour quantities?
Who gave it to you?
=================

Regardless of the contract type and regardless of the cash payment, it appears that your engineer has a case to answer.
According to your account above, it appears he has knowingly over certified the amount due to the paid to the Main Contractor.
By my calculation this seems to be well over 50% overpaid, which is too big a margin to be excused by claiming computational error.

You have to immediately take competent legal advice in this matter.
Find out if your engineer has Professional Indemnity cover.
Don't be surprised if you learn that he is not insured.

=================

Separately from this, the role played by your quantity surveyor is not clear.
The Q.S. has an integral role to play in any site work, and it does not rest with the preparation of a Bill of Quantities.
This, together with the Builders Programme of Works, helps map out the likely dates on which stage payments will become due and for what.

Your account of what went on gives me the impression that your quantity surveyor was not engaged for the site work.
If he was, it appears that he carries a similar liability to the engineer, in that the process of Recommendations from the Q.S. was not carried out or if it was it was ignored by the engineer.

In such a situation, the Q.S. should have raised queries and ensured the Employer was aware of the growing discrepancy between the cost of the works to date and the certified amounts.
The last payment - by your account - should not have been made.

=================

The standard of the workmanship and materials is also unclear.
For example,


 Were cubes of concrete sent away to be tested during all work stages?
 If not who will certify the concrete work and on what basis?
 The same basis the rest of the work has been certified?
=================

Your Main Contractor, either with the willing connivance of the engineer  and quantity surveyor or their negligence and/or incompetence may have defrauded you of many thousands of Euro.
As noted above, the matter is still ongoing, so in theory you have not suffered this loss YET, but every indications suggests this will not resolve itself.
Subsequent to his investigating and extablishing the facts of the matter I would explore with your solicitor the following possibilities -(i) the professionals get referred to their professional organization with a view to seeing them struck off their respective registers and 
(ii) the Main Contractor gets referred to the Office of the Director of Corporate Enforcement for trading with intent to defraud.​Where you go from here is not clear to me, but at least with a competent solicitor advising you will know what your options are under law.

ONQ.

  [broken link removed]

  All advice on AAM is remote from the situation and cannot be relied             upon                                                                                           as  a          defence    or           support   -         in          and     of               itself   -                      should                      legal                   action              be                       taken.
  Competent legal and building professionals should be asked to advise        in                                                                                                 Real      Life      with        rights      to                inspect         and             issue                    reports           on            the                              matters         at                      hand.


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## threebedsemi (28 Apr 2011)

+1 to all onq has said in relation to the above. 

Your engineer has a case to answer here if he overcertified, which seems to be the case. Hopefully you have some kind of appointment agreement with the engineer, a copy of which should be sent to your solicitor. 
You will need a solicitor who is experienced in building contracts, and a good independent expert (or perhaps more than one, I can see the possibility of reports from an Architect and/or Engineer, and a Quantity Surveyor, beng useful) in order to obtain the best result.

www.studioplustwo.com


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## RKQ (29 Apr 2011)

100% agree with ONQ - very well explained.
I would expect problems on a Self-build house, if you had not retained professionals to protect your interests. I do not understand who or why you paid cash for precast floors?


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## onq (29 Apr 2011)

<bows>

Hopefully I won't fluff any Contract Questions I may be asked during the Registration interview - I may take a print of this thread along showing its been peer reviewed! LOL!

I suppose to round it off I should mention the absolutely invaluable assistance that a Mechanical and Electrical Consultant can bring to any job with even a simple heating system.
We had to inspect and certify houses up on Meath once and we brought together a full design team minus QS whose role was split between the developer's financial advisor and his in-house engineer.

We had what looked like reasonably competent work done by a reputable Plumbing contractor and a separate Electrical Contractor - the M&E Consultant issued a two page list of items that needed rectification.
I was surprised, I have to say, but when I went through the list of items I had to agree they were needed for compliance with then-current codes of practice and the relevant regulations.

I had worked with that M&E before and have used him often since then.
His rates are very reasonable and he never fluffs an answer, misses a meeting or offers poor advice.
His competence rounds out the service end of the design team package, and allows our practice to bring Commercial levels of certification to residential and domestic work.

This is particularly useful when carrying out inspections for clients who are proceeding to High Court Action or - following legal or Council action - it offers a full level of written assurance.
But it is even more useful when undertaking work to large, one off houses - the services element of any large houses can be considerable and contain many unusual appliances or once-off rooms or areas.

So therefore, full "standard" team might look as follows -Architect
Quantity Surveyor
Civil and Structural Consulting Engineer
Mechanical and Electrical Consulting Engineer

Oh, you can add -

Chartered Land Surveyor - hugely useful for setting out work, which you leave to a builder at your peril, despite his resposibility under the Contract.
At the very least get it checked by a Land Surveyor, particularly if your neighbour is a Senior Counsel who values his privacy and separation distances!​Each brings his own speciality to the work, and if each firm is used appropriately it shouldn't cost five times the cost of an archtiect who is trying to do all the work.
OTC the total cost shouldn't rise by more than 50% and in some cases fees only rise 30%, but that depends on how the Team is run and the degree of co-operation and scheduling between the members.

ONQ.

  [broken link removed]

  All advice on AAM is remote from the situation and cannot be relied              upon                                                                                            as  a          defence    or            support   -         in          and     of               itself   -                       should                      legal                    action              be                       taken.
  Competent legal and building professionals should be asked to advise         in                                                                                                  Real      Life      with        rights       to                inspect         and             issue                     reports           on            the                               matters         at                      hand.


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