Terms & Conditions

Initial Quotation: Our initial quotation which will be provided to you by way of email after our initial consultation with you (if you wish to proceed) will clearly detail what we believe is needed to be done in order to achieve the result that you require (i.e. a certificate from a subcontractor, a certificate from a coordinator, a certificate from a private certifier and/or a certificate from council). We can only do this if you provide us with all the documents that are required, or requested by us and the documents are the current version. If you are unable to provide this, all parties agree that this initial quotation would not be an accurate representation of what is required and the continuation of our services will be contingent upon all parties agreeing to a variation (or variations, if applicable) of the agreement (see 'variation' below)

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Finality of the Final Agreement: In our initial quotation, we may include a 'tick box' of services we need to do (along with our agreed price to perform that service) in order to complete the task. You are required to tick either 'yes' or 'no' next to the item. If you tick 'yes', you agree that Fenkey Group will have the authority to do the task and that Fenkey Group will be managing the task. Fenkey Group will not accomodate a 'change of mind' after the owner/developer ticks the appropriate box(es), signs and returns the documents back to us, unless agreed to by all parties. It follows that the owner/developer will be liable for all fees and charges it has agreed to, in relation to Fenkey Group providing its services. This clause does not limit any rights and/or entitlements that the owner/developer has under the Australian Consumer Law (ACL) or any other applicable law.

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Variations: shall be deemed to occur when

1. Either a price mentioned in the quotation is different to the actual costs it takes for that task or tasks to be completed and/or

2. Where there are more items/tasks (unforseen by all parties) required to achieve the initial desired goal(s) of the owner/developer and/or

3. Where the owner/developer or private certifier or council or government authority or otherwise submits further works or requests that were not apparent at the time of signing and up until the present day.

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​If Fenkey Group deems any of the above to occur, Fenkey Group is entitled to submit to the owner/developer an amended quotation and/or contract and/or pause and/or stop work (whichever it deems appropriate in the circumstances) until such time as the subsequent agreement is agreed to by all parties and if there is no such agreement, then Fenkey Group has a unilateral right to terminate the agreement and recover any applicable costs from the owner/developer.

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Authority to Develop Property: by entering into an agreement with Fenkey Group, the person signing the necessary documents shall be assumed to have the requisite authority to enable changes to the property to occur. The Owner/Developer must submit to Fenkey Group a current Title Search demonstrating that they have the authority. Fenkey Group can obtain a title search at the owner's/developer's request, for a fee. If the Title Search indicates more than one owner, then for the purposes of this clause, it will be assumed that they have the consent of the other owner(s) to enable changes for the property to occur. If the Title Search indicates that a company whether proprietary or otherwise is an owner or one of the owners of the land, then for the purposes of this clause, the agreement needs to be signed in accordance with the relevant terms of the Corporations Act 2001 (Cth). If the owner of the land is a company, then the owner/developer must provide to Fenkey Group a copy of a  current ASIC Extract clearly showing all relevant parties in the company including the director(s) and secretary(ies) and shareholder(s) as evidence of the above.  (Hi Khayye the spacing here is very big even though I set it to 1.8 - can you help me here? thanks Khayye )

 

Signing of Documents: notwithstanding the 'Authority to Develop Property' clause above, at Fenkey Group's request, any documents must be signed in a way that is recognised by law (e.g. if there are two people on a title search then Fenkey Group can request both to sign a document, if it is a company Fenkey Group can request it to be signed in accordance with the Corporations Act 2001 (Cth)).

 

Expectation of Communication: Upon entering into a contractual relationship with Fenkey Group, there is an expectation upon the client (owner/developer) that he/she/they/it maintains timely communication with Fenkey Group. The client recognises the importance of maintaining timely communication with Fenkey Group and that timely communication is essential for Fenkey Group to progress the tasks requested by the client.

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Furthermore, it is expected that the client (owner/developer) responds to any query or request made by Fenkey Group at least within 1 and a half business days. For this purpose, Fenkey Group may attempt to follow up with the client a maximum of two times with at least 6 business hours between each follow up. For example, Fenkey may do the following:

1. Request that the client (owner/developer) make payment to a private certifier so that the private certifier attends a site inspection. This request is made to you on Tuesday, 1 March 2023 at 10am.

2. If the client does not action the request for payment as requested by Fenkey Group by Tuesday, 1 March at 4pm, then a follow up email will be sent by Fenkey Group at 4pm on Tuesday, 1 March 2023.  - Hi khayye the spacing here is big again ;) - could you help me here? thank you.

3. If the client does not action the request by 3pm on Wednesday 2, March 2023 then Fenkey Group at its sole discretion can do any one, some or all of the following:

   1. Pause the task and/or any subsequent tasks that was previously requested by the Owner/Developer in this or any previous contract for a time according to Fenkey Group's discretion

   2. Terminate this Agreement and Contract

   3. Terminate any other agreement associated with this Agreement

   4. Commence recovery proceedings at New South Wales Civil and Administrative Tribunal or the NSW Local Court or the NSW Supreme Court or any other Court or Tribunal within Australia 

   5. Commence recovery proceedings with a debt collection agency of Fenkey Group's discretion

   6. Place a lien, charge or caveat or similar instrument on any property of the owner/developer, which is to remain in place until the debt is paid off or otherwise at Fenkey Group's discretion. To give effect to this clause, the owner/developer consents to such instruments to be imposed upon the land and recorded in the relevant certificate of title

   7. Demand that interest be payable on any amount outstanding at a rate of 10 (ten) percent or the maximum percentage rate allowable by law (whichever is higher or at Fenkey Group's sole discretion) - Hi khayye the numbers on the left are very big and I can't make them smaller and could you make these a., b., c. instead of numbers? thanks khayye

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Furthermore, there will be no obligation upon Fenkey Group to perform any further follow ups with the client after the initial two follow ups and Fenkey Group will not be responsible for the consequences of meeting the requirements within the timeframe given including but not limited to

1. Interest that is payable on any applicable product or service

2. Any penalties payable for not meeting the deadline(s)

3. Any reapplication fees or any other applicable fees which arise as a consequence of the above

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Furthermore, should this delay result in other parts of the project or other tasks (whether or not we are responsible for them) then Fenkey Group also will not be responsible for the consequences that arise from this including but not limited to:

1. Inspections that are forfeited or withdrawn because of the delays and a possible loss of the inspection fees or equivalent;

2. Subsequent delays of subcontractors in circumstances where they were previously scheduled and due to start but are unable to do so because of the delays but then again aren't available to do the task(s) following the delay due to a clash in schedule with the subcontractor's other works at a different site.

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For the purposes of this clause,:

1. Business Days shall mean the days between and including Monday to Friday, not including government recognised public holidays; and 

2. Business Hours shall mean the hours between 10:00AM to 5:00PM Sydney Time on the Business Days.

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Delays and Time-Sensitive Tasks and Time-Sensitive Documents: From time to time, there may be tasks that require the prompt attention and action of both parties. For example, these include (but are not limited to):

1. Circumstances where a Development Application (DA) Approval has an 'expiry date' and if this expiry date lapses then the Applicant of the DA must then reapply for development approval; and

2. Circumstances where a Private Certifier, Council, or Subcontractor engaged by yourself or us changes fees after a specified time e.g. After December 31st or after June 30th or at any time during the period after Fenkey Group is engaged.​

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Whilst we will make all reasonable efforts on our part to meet the requirements, sometimes, this requires the cooperation and participation of the Owner/Developer. Should the Owner/Developer not be able or willing to cooperate or participate towards the completion of the task(s), Fenkey Group will not be responsible for the consequences of meeting the requirements within the timeframe given including but not limited to

1. Interest that is payable on any applicable product or service

2. Any penalties payable for not meeting the deadline(s)

3. Any reapplication fees or any other applicable fees which arise as a consequence of the above

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Furthermore, should this delay result in other parts of the project or other tasks (whether or not we are responsible for them) then Fenkey Group also will not be responsible for the consequences that arise from this including but not limited to:

1. Inspections that are forfeited or withdrawn because of the delays and a possible loss of the inspection fees or equivalent;

2. Subsequent delays of subcontractors in circumstances where they were previously scheduled and due to start but are unable to do so because of the delays but then again aren't available to do the task(s) following the delay due to a clash in schedule with the subcontractor's other works at a different site.

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It is further agreed that:

1. Whilst Fenkey Group will use all practicable endeavours to complete tasks within a reasonable period of time and as stated in the contractual documents, there will sometimes be circumstances that are outside of Fenkey Group's control such as:

   1. One of Fenkey Group's core employees illness or incapacity to work or death

   2. A subcontractor's illness or incapacity to work or death

   3. A subcontractor double booking the project for your task and is unable to attend

   4. Despite the best efforts of yourself and/or Fenkey Group, circumstances where a replacement subcontractor or replacement private certifier or other person is not obtained within a reasonable time 

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In such circumstances, Fenkey Group will not be held responsible for the consequences that arise from this and the time for completion of the task(s) will be adjusted according to the circumstances that arise.

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After Pay Completion: References of 'After Pay Completion' refers to a method of payment that is facilitated by Fenkey Group that allows the Owner/Developer to make payment of any fees and charges that it owes Fenkey Group after each individual stage, each individual task or as otherwise specified by Fenkey Group and agreed to by all parties. For the avoidance of doubt, the 'After Pay Completion' terms only apply to Fenkey Group's fees and no other person or company.

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Payment of Fees Requested by Fenkey Group: Any applicable fee(s) that are payable by the Owner/Developer and when the fee(s) are due and payable will be contained within the agreement or will be requested in writing and sent to the email address of the owner/developer. For the avoidance of doubt, the 'After Pay Completion' terms only apply to Fenkey Group's fees and no other person or company.

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Should any fee(s) be unpaid when it is due then, at Fenkey Group's absolute discretion (subject to any relevant law(s) may do one, some, or all of the following:

1. Pause the task and/or any subsequent tasks that was previously requested by the Owner/Developer in this or any previous contract for a time according to Fenkey Group's discretion

2. Terminate this Agreement and Contract

3. Terminate any other agreement associated with this Agreement

4. Commence recovery proceedings at New South Wales Civil and Administrative Tribunal or the NSW Local Court or the NSW Supreme Court or any other Court or Tribunal within Australia 

5. Commence recovery proceedings with a debt collection agency of Fenkey Group's discretion

6. Place a lien, charge or caveat or similar instrument on any property of the owner/developer, which is to remain in place until the debt is paid off or otherwise at Fenkey Group's discretion. To give effect to this clause, the owner/developer consents to such instruments to be imposed upon the land and recorded in the relevant certificate of title

7. Demand that interest be payable on any amount outstanding at a rate of 10 (ten) percent or the maximum percentage rate allowable by law (whichever is higher or at Fenkey Group's sole discretion)

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In relation to the above, it is agreed that any costs associated with such recovery actions shall be made recoverable from the Owner/Developer at their request and/or  at and/or following a ruling or decision by a court or other authority.

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Payment of Fees requested by other parties other than Fenkey Group: The owner/developer acknowledges that it is responsible for the timely payment of any fees and charges to any other council, government authority, subcontractor, private certifier, or any other person or company that is not related to Fenkey Group. For the avoidance of doubt, the 'After Pay Completion' terms only apply to Fenkey's fees and no other person or company.

Independent Advice: The owner/developer, by signing this Contract and entering into a business relationship with Fenkey Group that it has obtained any and all legal advice and financial advice and town planning advice and any other relevant advice and it has satisfied itself of the advice and relevant steps and procedures for the task(s). 

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Inconsistency Between these Terms and the General Contract Terms: Should there be any inconsistencies between the standard form agreement and any of these terms it is agreed that these terms shall prevail.

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