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Support => Fellow Practitioners Update => Legal matters Q and A => Topic started by: Plumber on January 30, 2014, 01:14:31 PM


Title: Reclaiming of plumbing fixtures (goods) due to non payment
Post by: Plumber on January 30, 2014, 01:14:31 PM
Hi everyone

I would like to share an experience with you and hope to get some feedback/comments. Maybe someone has had a similar experience..

As we do on many other jobs we provided a written quote to a client we have never done work before. The quote provided was clear in all aspects and also included very comprehensive terms and conditions. Several days later the client agreed to the quote and conditions of trade. To cut a long story short the client paid the first progress claim over 6 weeks late during which further works took place. We were assured payment would take place and hence didn't want to cause an inconvenience by not completing works they needed done to prevent a holdup of other trades. When the first payment came through we were very relieved, at this time the second progress claim was submitted with an owing amount of ca. 22K. As before the client didn't pay by the required date and again reassurances were made that payment would take place. From invoice date over 2 months and 8 payment dates were promised but not held. In a semi panic we called for an urgent site meeting with the client onsite to sort things out, they agreed to the meeting but never showed up. In previous correspondence I pointed to the fact that they did not own the supplied fixtures which was a 400L HWC and large supply pump at a value of about 5K. The following day the client wrote yet another email, promising a partial payment to be paid 5 days before Xmas! Of course we knew that we were never going to see our money because several weeks before we came to site and saw that the client had already employed other contractors to complete work we had started!

In my mind there was no question but to minimize my losses and reclaim what I owned and so I did! Of course after we reclaimed our property the client was very upset as we had left them without water so close to the holidays. The client is now of course picking holes in everything we have done despite the fact that we have written correspondence of how happy they were with work done so far.

By crediting the HWC and pump we were able to immediately loge the debt with the disputes tribunal (15K max), 24/hours before the tribunal takes place the client lodges a counter claim apparently to be supported by the Master Plumbers but has not received yet??? (not sure how Master Plumbers get involved in these issues)

Work was never fully completed or signed off, no producer statements were provided and now another company is to provide a full report or "evidence" on the "existing" installation. Its sounds messy but in actual fact we do feel its clear cut because of all the written evidence we have. We also took images of all property prior and post removal of items.

I copied in a section of our terms for you to look at, this was written by a company specializing in trades T and C. 

7.              Title
7.1          “the plumber” and Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid “the plumber” all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to “the plumber” in respect of all contracts between “the plumber” and the Customer.
7.2          Receipt by “the plumber” of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then “the plumber” ownership or rights in respect of the Goods shall continue.
7.3          It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until “the plumber” shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from “the plumber” to the Customer “the plumber” may give notice in writing to the Customer to return the Goods or any of them to “the plumber”. Upon such notice being given the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) the Customer is only a bailee of the Goods and until such time as “the plumber” has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to “the plumber” for the Goods, on trust for “the plumber”; and
(d) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that “the plumber” will be the owner of the end products; and
(e) if the Customer fails to return the Goods to “the plumber” then “the plumber” or “the plumber” agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods, and “the plumber” will not be liable for any reasonable loss or damage suffered as a result of any action by “the plumber” under this clause.

Once I get the counter claim I will let you guys know. Have you reclaimed property before? Have you ever had a similar experience? Once this is all over these guy will definitely go on the blacklist :)

I will try to keep you posted on progress, look forward to your thoughts.

Title: Re: Reclaiming of plumbing fixtures (goods) due to non payment
Post by: Enn on January 30, 2014, 03:14:12 PM
 I hope it goes well for you with with the adjudicator, your  T&C are very specific.
 my experience with small claims was a total waste of time although the defendant was a criminal that had absolutely no intention of paying whatsoever. 

After being stuffed around by non appearance then appealed the day before judgment was due then unsuccessful defence at the next hearing followed by a long time before the judges decision came out and was actioned the bailiff, who was sent to the address 3 times  where he was unable to locate the defendant although there was lights and movement at the address no one would answer and no vehicle registered to the defendant  it came back nulla bona where i apparently was required to provide a residential address where the chap could be found. ???

It was at that point i realised i was wasting my time and effort and would have been much better off to have sold the debit to the chaps that ride motorcycles and wear funny hats.

On a brighter note a colleague had a contract payment  well overdue  and after being promised payment that did not arrive and hearing that the said person had left on a trip to Australia.
 So he went on site and recovered radiators and WC pans while doing so the client arrived and was informed of non payment and that all would be returned and reinstated when payment was received as promised.
The money was in his account the next day. :D

Title: Re: Reclaiming of plumbing fixtures (goods) due to non payment
Post by: Plumber on January 30, 2014, 09:37:30 PM
Hi Enn, very interesting experiences, like your colleague we made the same offer but unfortunately they decided to use another plumber and purchase a new HWC and pump then try charging us for it! They might as well charge me for windows and doors, I just don't get the logic of these people!

We have two experiences so far with adjudication and in both cases we won and got our money so I hope all good things are three :) I have to admit I like the idea of selling the debt to the guys in funny hats  :P. The adjudicator has given them 2 weeks to present their apparent evidence nd counter claim, I will be sure to share that with you. I have to admit even if we win I'm not very confident we will see the money for a while. :(
Title: Re: Reclaiming of plumbing fixtures (goods) due to non payment
Post by: Jaxcat on January 31, 2014, 09:06:14 AM
Hi Plumber
I've had three cases that I've taken to the disputes tribunal and won all three.  If your paperwork and evidence is organised - as it sounds like it is, then I don't think the customer has a leg to stand on.  I would also be surprised if Master Plumbers got involved, as their code of ethics prevents them criticising the work of another member in such a forum.  As you are probably aware they have a complaints process but that is dealt with in house.

If you win and the guy doesn't pay then you have two options, or a mixture of both - that is to go for seizure of goods (if you have a car registration number or he has property) then you can request the courts seize goods and sell them to settle the debt, or an examination of his financials and then a court order to pay so much per week.  I have used both of these - again successfully - although it takes a bit of time and paperwork.  The court can help you with the forms for either of these - you simply need to take the written decision of the Disputes Tribunal in to them and fill in the paperwork.  If you don't have the address of the guy that owes the money you can ask the court to seek it out - there is another form for this.  I chased one guy all over the place as he kept shifting - but it became a matter of principle and I eventually got all my money bar $400 because he ended up going to prison for fraud in another case.  All the costs for doing this get added to the original debt - I think it is about $90 court costs each time, so I had much satisfaction in watching his debt grow.  The moron could have reached an agreement to pay with us and saved himself several hundred dollars.

We have seized goods that were not attached to the building - but I always thought that once installed they became part of the building proper and it wasn't so straight forward.  However, possession is the key, and I guess once you've got the pipes ripped out and in your possession what can they do?

Really looking forward to how you get on.  Sounds like this customer is a tosser who never had any intention of paying in the first place, some of them are really practised at it, and just keep changing subbies to avoid paying anyone, and it's not until subbies put their heads together that it all comes out.  Why would another plumber even start on a job like this without talking to the former plumber.  It would ring huge alarm bells for me.
Title: Re: Reclaiming of plumbing fixtures (goods) due to non payment
Post by: Plumber on January 31, 2014, 10:15:38 AM
HI Jaxcat, thanks for sharing that. Sounds like you know your way around the tribunal :) I agree 100% with the fact that the guy is funding his 2 million dollar home with not paying trades. I totally forgot about the code of ethics with MP so thanks for pointing that out. I was told of another story where a heatpump guy reclaimed his heatpump and the homeowner took him to court requesting it to be put back. The heatpump installer won the case based on the fact that the adjudicator simply stated that he didn't own the heatpump so how could he reclaim it. As a contractor what else can do you do when your held ransom that way? I simply had to get my gear to minimize my losses, I sold HWC and pump at a loss but at least I got some of the money back! Very annoying you can only take 15K to the tribunal without going through great expenses at the district court.

I don't know why other plumbers even bother working on sites with problems without investigating first, maybe it was his large home that left an impression? Maybe the homeowner made promises to give him more work as he did with us? I don't know. The least he should be doing is calling us to find out what went wrong. I hope he was smart enough to ask for payment in advance. Counting the days now to hear back with the counter claim, I will keep you posted.
Title: Re: Reclaiming of plumbing fixtures (goods) due to non payment
Post by: Plumber on March 04, 2014, 11:50:33 AM
Quick thread update. just received >> As per Referee **** direction the counter claim was to be submitted no later than 12 February 2014.  I understand a representative on your behalf attempted to file the counter claim on 26 February 2014 and was refused as the time frame allowed had expired. 

Further >>

The question of whether the file will be transferred to the District Court is still pending, the last direction of Referee **** is basically asking for you to put forward all the reasons together with the relevant law as to why you believe your claim should be heard and determined in the Disputes Tribunal rather than the District Court.  Unfortunately my role does not allow me to give advice to parties, you may seek legal advice and have a lawyer/solicitor help draft your response if you wish. 

I'm confused as I already did this the first time! Not sure why the tribunal seems to take the district court into consideration. Also not sure where this leaves us. Sent a follow up email advising and where we go from here and that the original documentation should be used. Will see what they come back now :/
Title: Re: Reclaiming of plumbing fixtures (goods) due to non payment
Post by: Jaxcat on March 04, 2014, 12:23:26 PM
That doesn't make sense to me either.  You want it heard in the Disputes Tribunal because it is a much cheaper remedy than the District Court.  I don't understand why they are mentioned the District Court at all.  Keep us posted, and good luck!
Title: Re: Reclaiming of plumbing fixtures (goods) due to non payment
Post by: bowtieboy on March 04, 2014, 05:54:06 PM
plumber, i would go to the court house and question why!
Title: Re: Reclaiming of plumbing fixtures (goods) due to non payment
Post by: Plumber on April 08, 2014, 10:22:43 AM
Finally got a reply today..

Hi xxx,
A decision transferring the matter from the Disputes Tribunal to the District Court was issued on 26 March 2014.  A covering letter along with the Order of the Tribunal and a Civil Notice of Claim form was sent to both parties on 1 April 2014.
Kind regards,

Apparently even though the claim was under 15K the case became too complicated for the tribunal to process because of our references to the terms and conditions allowing us to remove goods. Now im clearly confused! The question is how much are we willing to spend on lawyers to get 15K and if we decide to write it off are we opening ourselves up to liability towards the consumer??

Anyway getting some advise from our lawyers, will update you on progress.
Title: Re: Reclaiming of plumbing fixtures (goods) due to non payment
Post by: Jaxcat on April 08, 2014, 01:04:02 PM
Hi Plumber - I haven't had a lot to do with lawyers - sure we have one we use from time to time, but he is very pragmatic and gets us to do as much of the work ourselves that he can and he just casts an eye over it.  Lawyers often make simple things very complex - this is how they earn their money.

Is there any chance you can simply represent yourself?  No lawyer I know, knows much about plumbing and you are surely an expert on your terms and conditions.  From what I understand basically you are saying your terms and conditions allow you to remove the gear if they are not paid for.  It all seems pretty straight forward. 

Can you represent yourself?
Title: Re: Reclaiming of plumbing fixtures (goods) due to non payment
Post by: Plumber on April 08, 2014, 02:35:41 PM
I see what your saying Jaxcat, it's all a matter of confidence as I have never been in that situation before. Apparently a counterclaim has been made which I have not seen yet, maybe I need to wait and get more info before we jump the gun. Your right about saying I should be representing myself, I will definitely consider that. Will wait to hear back from the court and post some updates soon. Thanks for you help with this. 
Title: Re: Reclaiming of plumbing fixtures (goods) due to non payment
Post by: Plumber on May 08, 2014, 04:08:58 PM
Had a phone call today from another contractor that is owed 40K. Very interesting, his disadvantage though was that he billed her company and we billed her personally. We discussed doing a claim together but not sure this is possible due to this fact. We believe other contractors have also not been paid. Waiting to hear from the district court now.
Title: Re: Reclaiming of plumbing fixtures (goods) due to non payment
Post by: Jaxcat on May 08, 2014, 04:53:31 PM
I think you would struggle to do a joint claim as essentially her "personally" and her "company" are two different entities in the eyes of the law, unless she provided personal guarantees for the company work - and I suspect not.  Isn't it usually the way - these people are professionals at getting work done with no intention of paying for it.  I'll bet she's done it before.
Title: Re: Reclaiming of plumbing fixtures (goods) due to non payment
Post by: Plumber on May 19, 2014, 10:57:08 AM
Hi Jaxcat, I agree I think they have done this sort of thing before! Latest update is they called with an unknown number making an offer of to settle outside court! The check of these people is unbelievable  >:(
Title: Re: Reclaiming of plumbing fixtures (goods) due to non payment
Post by: aboutgas on May 19, 2014, 04:52:17 PM
Hi Plumber, I hope you didn't accept the offer and are taking them through the court so that they can be named in the media as a warning for other tradesmen of there behaviour. I also hope you get your full measure and some for your extra time. They must be worried if they are trying to make settlement out of court. good luck and keep us updated   
Title: Re: Reclaiming of plumbing fixtures (goods) due to non payment
Post by: Plumber on May 20, 2014, 09:08:53 AM
Hi aboutgas, offer was definitely declined. I'm still very shocked about their mannerism. Ringing me up like nothing ever happened. I Hope to get a court date soon, I will keep you posted on progress.
Title: Re: Reclaiming of plumbing fixtures (goods) due to non payment
Post by: Jaxcat on May 20, 2014, 01:16:51 PM
Possibly been to a lawyer, been told what their chances are and wanting to avoid court decision, big lawyers fees and hoping to catch you off guard.  Like you say - more cheek than a fat man's arse!