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.




Linkback: https://www.plumbers.nz/legal-matters-q-and-a/46/reclaiming-of-plumbing-fixtures-goods-due-to-non-payment/1610/

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  . 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.

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.

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!

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.

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. 

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.

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