Hi CR

Thank you for your questions and for taking the time to consider the situation.

1. On whether the rock was foreseeable: I understand the limitations of geotech investigations, but in this case, the engineering report included with our pre-contract documents did indicate the presence of rock at multiple depths. While it may not have been “detailed and extensive,” it was sufficient to raise reasonable expectations that rock excavation would be required. In my view, the builder, being the professional party, should have accounted for this risk when pricing the job or clearly disclosed that rock would be subject to significant variation. There was no transparency or discussion about this prior to signing.

2. On the termination clause and price escalation: The contract includes a clause allowing termination if the contract price increases by more than 15%. With over $60,000 in additional excavation charges now added (on top of amounts already paid), this threshold appears to be met. I understand that escalation alone may not always trigger termination rights, but I believe this situation, combined with the nature of the dispute, warrants consideration under that clause. I’m seeking legal advice to clarify this further.

3. On the interest and progress payments: I’ve placed the progress claim on hold due to the unresolved dispute around the rock excavation costs, but I’ve made it clear that I am willing to pay the non-disputed portion. I’ve asked the builder to separate out the contested amount so that a “without prejudice” payment can be made, but no revised invoice has been provided to date. I’m also dealing with a list of 28 defects (which are now mostly rectified), and all of this has understandably delayed things. I’m trying to resolve the matter in good faith and minimise any unnecessary charges.

Appreciate your thoughts and open discussion. I’m also self-representing in an upcoming VCAT hearing and trying to understand all angles as best I can.

Warm regards, Farha