My question is in relation to a building contract that is being handed over from one builder to another as the first is

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Customer: My question is in relation to a building contract that is being handed over from one builder to another as the first is having financial difficulties. Could I speak on the phone please? I need to make some decisions today as the new builder is asking to start but the financial arrangements seem unclear and are concerning me. Jennifer (###) ###-#### JA: What state/territory are you in? It matters because laws vary by location.
Customer: Victoria
JA: What steps have you taken so far?
Customer: I have met with the old builder's suggested replacement and discovered that the fee amounts taken from me at base and frame stage were inflated, meaning that the new builder wants to finish the job(under the auspices of the first guy) but get more than what was in the contract I need to know how to get the original builder to pay (he is selling his house due to these financial stresses and moving to Tasmania. I am worried if I don't take action now, I will be left with an unfinished job (I am not flush with funds due to covid, very difficult situation as what I am building is a home studio to save me on commercial rents. I am an artist. My business had to closed since March.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: That is the basisc of it
Answered by John Melis in 5 mins 2 years ago
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John Melis
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John Melis, Expert

Hi, I am John Melis, the solicitor. I am in Australia. I thank you for sharing today your circumstance. Hopefully, we can get your issue resolved quickly. If you feel appropriate, you may tell me a little bit more about your outcome that you'd like to seek. If the information I provided to you is okay, please let me know. When you are feeling in control, then you are on the right path forward.

​The Victorian Civil Administrative Tribunal “VCAT” is perfect for meditating disputes. It forces the parties to come together to discuss the issues involved.

In most cases at mediation, the matter will settle.

Your case is civil.

You will be the applicant. The other party is the respondent.

The document you file in the tribunal is the points of claim. This correspondence needs careful preparation. I recommend you download the application first and complete the same. Then upload as required to commence the lawsuit.

Draft the complaint in a chronological order detailing the issue and what action you have taken to try and rectify the matter.

The alternative is to apply to the local court. In court, you may recover your legal fees.

The following link will assist you further:

www.vcat.vic.gov.au

You may also consider the option of using the small business commissioner as well.

www.vsbc.vic.gov.au

There are various help menus on the website that will assist you in finalising the application.

Make sure you have all your evidence for the case.

Once you lodge your application, you will receive notice from the tribunal with the next steps to follow.

​I thank you kindly for reaching out today.

I appreciate your assistance with a rating of five stars, as this helps me support the community.

If there is anything else, big or small, that I can help you with today, please let me know?

Customer
I actually wanted some advice on how to out things in place to make sure that the builder puts back into my project what he got paid without spending. I want the new builder to start up again and get it done before Christmas, but I cannot pay an extra $20,000 on top of the contract, because the original builder gave me a contract that deviated from th standard (he has recieved 50% of funds, but only 35% of works are done roughly)As I understand it, a VCAT hearing will take months to get, by then he will have sold his home and moved away, leaving myself and others at a loss. Shouldn't I be getting myself on his list of creditors?
Customer
answering here is fine at this stage
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John Melis, Expert

You can try the matter in the court, and this can be quicker than VCAT.You may lodge a claim in the court.You need to first write a formal complaint to the other party. This complaint needs to be in a numbered order detailing the issue and what action you have taken to rectify the matter. Send this complaint to the other party by email with a time limit to reply.If mediation does not occur, commence court action.The court’s website has a forms section, which you can download the documents to commence the claim against that other party. There are practice notes on the court’s website. There are various resources also, which you could utilise to aid you in completing the claim form.Once you have submitted the claim form into the court, then you must serve the documents on to the other party.You will receive email communications from the court, and you need to review these communications carefully, as they give you instructions on what to do next.You can run your case in this particular matter, as this will avoid legal fees. The alternative is to engage a local lawyer to help you prepare the claim and then pursue the legal costs against the other party.The best outcome is to try and mediate it amicably, and the court should be a last resort.
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