Attended VCAT today for our court case around the goods stolen from my shed in the backyard.
Explained to the Judge that I did not want to be there and that I was only there as PD had only responded no to my claim without giving any explanation as to why and had not bothered to meet with me as part of a formal mediation process.
I argued that as Porter Davis had control the site and my shed was on their drawing they were responsible for the loss of my goods and should pay me for them.
Their argument is that I should have told them everything that was in the shed and by not doing so I was responsible for the loss.
We had a 5 minute discussion prior to hearing with the Judge and PD raised the fact that someone had a Porsche stolen from a building site and the builder was not deemed responsible as the owner had not informed the builder the porsche was there. I said that was nothing like my claim as I had a shed with tools that had been stolen and they should have expected me to have tools in a shed.
We agreed to disagree and let the Judge decide.
Porter Davis argued that I should have taken photos of all the items so that I could prove that I own them, they fought very hard and also said I had not raised the police report so then how could they claim on insurance. In a different sentence they said they never go through insurance as the excess is too expensive so they just pay their contractors out when items get stolen.
My argument was that if PD required to know everything in my shed they could have asked me to take photos and I would have done so. They never raised this and as they were taking over the site they should have.
PD also argued that only hand tools should be reasonably expected to be in a shed which I thought was ridiculous. They also said that someone would need a car to take all of those things to be moved off site. (I bit my lip because I so badly wanted to say with a double gate unlocked at the front as PD do,
you could get a friggin semi trailer in there)
PD argued that as I did not have receipts for each and every item then I should be able to claim a loss for them. Ridiculous as I have purchased or been given as presents those items over the last few years.
PD said they would never leave anything in a shed on one of their building sites. hmmmm
I argued that under clause 20 and 25 of the contract they were responsible for who came on site and they were responsible for site security. If their site was such a risk why didn’t they tell me to take everything out of the shed. I also argued that I had informed them of a previous break in and put a padlock on which they told me to remove. They then did not take any measures until much later to manage the theft problem (i.e. a camera on site)
The Judge asked a question which I thought was very relevant. I have a chook shed on my site and she asked if I left the chooks there what would I have expected to happen.
I answered ” If there were chooks on site I would have expected PD to ask why there are chooks on site and what was I doing about that” in the same was as they should have asked “what’s in the shed?”
PD also kept saying they had never received a list of the stolen items, to which I answered if they bothered showing up to mediation it was contained in the information I supplied to mediation months ago.
The Judge decided that clause 20 of the contract was unclear and vague so that PD did not have to indemnify me for the loss due to the contract but under clause 25 PD did manage the site and was aware of the risk and did nothing and that my items were considered as liens as clause 20 was vague.
In regards to which items were considered to be normal in a shed all handtools and power tools were considered to be normal. I had some specialist race car tools and these were considered not to be normally considered to be in a shed.
The Judge rules in my Favour for just over half the amount I was claiming, more importantly there is now a legal precedence that if you have normal items in your shed on a building site and they are stolen under the HIA standard agreement the builder is responsible for the theft.
Hopefully someone else does not have to go through this situation where the builder is trying to bully them out of a fair claim.