debt collection and switching invoices

[ROBBIE12]

A builder was building a retaining wall and refused to follow the engineers design. The builder in writing unilaterally terminated half way through the job costed at $10,000. I paid $4000 out of $5000 he had claimed via 2 invoices, invoice A and B. The $1000 outstanding he claimed was for invoice A. I asked for itemization of the invoices so I could make sense of his $1000 claim. He refused to do this. I did not pay.

6 months later I received debt collector notice for $3500 for invoice B, for the first time. Invoice A, not referred to. I explained that I had never received a notification that this $3500 was oustanding, and I explained I have not itemization of invoice as allowed by ACCC. The builder then wrote and said ""I'm going to just wipe the debt because your not worth the headache and the pain". He then changed his mind and the debt collector continued to pursue the debt. Then debt collector withdrew this claim in writing. I have not received any further communication from the builder.

My question is whether the builder can now go back to the $1000 claim for invoice A?

 

[Rod]

Maybe, but unlikely.

You may have a counterclaim if the wall was not built to spec.

 

[CirLott]

Maybe, but unlikely.

You may have a counterclaim if the wall was not built to spec.

Hi.
My friend has a similar situation. The builder did not do to spec even though all money was paid. Is it possible to sue and recover the money spent?

 

[Rod]

Possibly. Check with the building authority in his State. And check how quickly he has to make a claim. It may be six years, but it may be a shorter period or longer (eg if covered under a builder's guarantee)

 

[CirLott]

Possibly. Check with the building authority in his State. And check how quickly he has to make a claim. It may be six years, but it may be a shorter period or longer (eg if covered under a builder's guarantee)

Thank you. 6 years seems like an incredibly long time.

 

[zaffin]

ROBBIE12 this new legal AI tool https://legalmind.com.au generated this for you

"This is quite a complex situation which involves aspects of contract law, specifically related to construction contracts, varying degrees of verbal and written agreements, debt collection, and possible implications of statute of limitations.

Based on the information provided, it appears the builder might still be legally able to claim the amount owed on Invoice A, provided there's substantial evidence and it doesn't breach the limitations period. It's crucial to note the written agreement where the builder stated they're 'wiping the debt'. This could potentially be construed as a contractual agreement to forgive the debt, though its validity might be subject to interpretation under the law.

However, several aspects of debt collection practices should be considered under the Australian Consumer Law and the Fair Trading Act which are overseen by the Australian Competition and Consumer Commission (ACCC). If there has been no prior notice of the $3500 debt (Invoice B), or no itemisation of the invoices, your rights as a consumer might have been infringed.

Your builder switching the claim back to Invoice A could be seen in light of regulations such as the Building and Construction Industry Security of Payment Act. Parts of this Act, specifically section 20, suggest that a claimant (here, the builder) may recover the unpaid portion of the claimed amount as a debt due in a court of competent jurisdiction. Practically, this may mean the builder could possibly revert to claiming the $1000 under Invoice A.

However, the builder's declaration to 'wipe the debt' followed by continued collections attempts could potentially be seen as deceptive conduct under Australian Consumer Law, sections 18 and 29, which could have implications for their overall claim.

Also, depending upon the terms of the contract, clauses may be present which outline the course of action in case of a dispute or non-compliance, these should also be checked as contractual provisions can influence this situation.

However, in all probability, these circumstances present multiple legal aspects requiring careful consideration. While this advice gives an interpretation of possible legal aspects to consider, it's suggested to consult a legal professional for an exhaustive understanding and legal strategy. This advice is general in nature and doesn't represent any official legal advice regarding your specific circumstances."